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You Can Be Convicted for OUI, Even With a BAC of Under 0.08%

Even if you’ve never been pulled over by a police officer and asked to take field sobriety tests, you’re probably aware of how people get arrested for operating a vehicle under the influence (OUI). Enough people in the state of Maine get arrested for OUI that you’ve likely heard someone talk about their experience. You may have also learned about what the process looks like from TV, or the movies.

But here’s a situation that may not have crossed your mind: What happens if you get pulled over, fail several sobriety tests because you’re too drunk to walk straight or count to ten, but then the breathalyzer test shows that your blood alcohol content (BAC) is 0.06%, under the legal limit? Does the officer shrug his shoulders and let you go?

No. In Maine, the officer can still arrest you, and you can still get charged for OUI, and you can still get found guilty.

This is because the OUI laws in Maine do not rely completely on BAC testing. Maine’s drunk driving statute states that:

  • 1. A person commits OUI if that person:
  • A. Operates a motor vehicle:
  • 1) While under the influence of intoxicants; or
  • 2) While having an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath

The “or” is critically important, here. It allows for an OUI conviction if you’re found to have either a BAC of 0.08% or above, or are found to be “under the influence of intoxicants.” This means that, even if you pass a breathalyzer or a blood test, you can still be arrested if you were deemed to be “under the influence,” which is often a decision made by the arresting officer. There are several cases in Maine that have done just this, finding drivers guilty of OUI without reference to their BAC levels. Instead, these cases say that drivers are “guilty of operating under the influence if [their] mental or physical faculties are impaired however slightly, i.e., to any extent.”

This might make you wonder. If a police officer can arrest someone for OUI without having them take a breathalyzer, why do they always make them take one?

The answer is that having a driver take a breathalyzer makes it much easier to convict the driver of OUI. With a breathalyzer reading of over the legal limit, it’s difficult for the driver to fight the charges. Without that evidence, however, the case is much more difficult for the prosecutor to prove, and will likely go to trial, where the officer would have to convince the jury that the driver was “under the influence.” This is why you may want to consider refusing to take a breathalyzer if you’re pulled over for drunk driving – it makes your case much more difficult for the prosecutor.

If you or someone you know is facing charges for OUI, but there is no breath test showing you were over the legal limit, call the law offices of William T. Bly at (207) 571-8146.


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So thankful I chose this team to represent me. They’re the best, hands down. Nathan Hitchcock proved my innocence not once but TWICE, including a trial by jury. I have a family in law enforcement who told me “Bill Bly and his team are the best. If I would recommend anyone, it would be them.”

Brandon Albert





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