OLR Research Report


July 12, 2002

 

2002-R-0614

OPEN ALCOHOL CONTAINER AND POST-ACCIDENT TESTING LAWS

 

By: James J. Fazzalaro, Principal Research Analyst

Information is provided for each state showing:

    ¬ State (Citation)

    ¬ Penalty for Open Container Law Violation

    ¬ Law Regarding Alcohol Consumption While in a Motor Vehicle

Alabama (32-5A-330)

Penalty: Maximum $ 25

Law Includes Possession and Consumption

Arizona (4-251)

Penalty: Maximum $ 750

Law includes possession and consumption.

California (Vehicle Code 23222-23226)

Penalty: $ 70 fine plus $ 119 additional penalty for $ 189 total due

Separate Law on Consumption--Same Penalty

District of Columbia (25-1001)

Penalty: Up to $ 500, up to 90 days, or both

Law includes possession and consumption.

Florida (316. 1936)

Penalty: $ 60 if driver; $ 30 if passenger

Law includes possession and consumption

Georgia (40-6-253)

Penalty: $ 200 Maximum

Law includes possession and consumption

Hawaii (291-3. 1)

Penalty: Up to $ 2,000, up to 30 days, or both

Law includes possession and consumption

Idaho (23-505)

Penalty: Up to $ 300, up to 6 months, or both (Misdemeanor) if driver;

Up to $ 100 (Infraction) if passenger

Law includes possession and consumption

Illinois (625 ILCS 5/11-502)

Penalty: Up to $ 500; License Suspension for 2nd conviction within one year

Iowa (321. 284 and 284A)

Penalty: $ 100

Separate law on consumption (123. 46) with penalty of $ 50-$ 500, up to 30 days, or both

Kansas (8-1599)

Penalty: Up to $ 200, up to 6 months, or both; License suspension for 2nd offense within 5 years or, in lieu thereof, court imposed conditions on driving privilege

Separate law on consumption (41-719) with penalty of $ 50-$ 200, up to 6 months, or both

Kentucky (189. 530)

Penalty: $ 35-$ 100

Separate law on consumption (222. 202) with penalty of $ 25 for 1st and 2nd Offense; $ 25-$ 100, 5 to 90 days, or both for 3rd or Subsequent Offense

Maine (29-A: 2112A)

Penalty: $ 25-$ 500 (Traffic Infraction) applies to vehicle operator only

Law includes possession and consumption

Massachusetts (C. 90: 24I)

Penalty: $ 100-$ 200

No explicit consumption law

Note: Prior anti-consumption law was replaced by open container law in 2000. Current law apparently is still considered in compliance without explicit prohibition on consumption.

Michigan (436. 1915)

Penalty: Up to $ 100, up to 90 days, or both, and two license points

Separate law prohibits consuming alcohol "on the public highways" but explicitly states no penalty (436. 1915

Minnesota (169A. 35)

Penalty: Up to $ 1,000, up to 90 days, or both

Law includes possession and consumption

Nebraska (60-6,211. 08)

Penalty: Treated as traffic infractions--$ 50 fine

Law includes possession and consumption

Nevada (484. 448)

Penalty: Up to $ 1,000, up to 6 months, or both, or community service in lieu of all or part of penalty

Consumption provision of law applies only to driver

New Hampshire (265: 81)

Penalty: Fines for traffic violations are not mandatory but can be for up to $ 1,000. Driver's license can be suspended for 60 days for a 1st offense and up to one year for a subsequent offense.

No explicit prohibition on consumption, only on possession or transportation within the passenger area.

New Jersey (39: 4-51b)

Penalty: For 1st offense: $ 200 fine and court must inform him of penalty for subsequent offenses. For 2nd or subsequent offense: $ 250 and 10 days community service.

Separate law prohibiting consumption by driver or passenger while vehicle is being operated (39: 4-51a). Person is "presumed" to have consumed alcohol if (1) a partially filled unsealed container of alcohol is found in the passenger compartment and (2) the appearance or conduct of either the driver or passenger "may be associated" with consumption of alcohol. Containers specifically include glasses or cups. Penalties are the same as the open container law.

New Mexico (66-8-138)

Penalty: $ 25 fine for 1st offense; up to $ 300, up to 90 days, or both for 2nd or subsequent offense. In addition, license must be revoked for 3 months for 2nd offense and one year for 3rd or subsequent offense.

Law includes possession and consumption.

New York (Vehicle and Traffic Law 1227)

Penalty: Traffic Infraction-Up to $ 100, up to 15 days, or both for 1st offense; Up to $ 200, up to 45 days, or both for 2nd offense (within 18 months); Up to $ 300, up to 90 days, or both for 3rd or subsequent offense

Law includes consumption and possession.

North Carolina (20-138. 7--Effective until 9/30/2002)

Penalty: Infraction-up to $ 100 fine.

Law includes possession and consumption.

North Dakota (39-08-18)

Penalty: $ 50, but violations involving vehicle occupants other than a driver cannot be recorded on their license history.

Law includes possession and consumption.

Ohio (4301. 62)

Penalty: Minor misdemeanor-up to $ 100 fine

Separate law prohibits consuming alcohol in a motor vehicle (4301. 64). Violations are 4th degree misdemeanors (up to $ 250, up to 30 days, or both).

Oklahoma (21-1220)

Penalty: Up to $ 50 fine

Separate law prohibits consuming alcohol in any passenger coach or "any other vehicle commonly used for the transportation of passengers" (37-8). Penalty is $ 10-$ 100 fine, 5 to 30 days, or both.

Oregon (811. 170)

Penalty: Traffic Violation--Up to $ 300

Law includes possession and consumption.

Pennsylvania (18-7513)

Penalty: Summary Offense-Up to $ 300, up to 90 days, or both

Law includes possession and consumption.

Rhode Island (31-22-21. 1)

Penalty: Up to $ 200, up to 6 months license suspension, or both, for 1st offense; up to $ 500, up to one year license suspension, or both, for subsequent offense

Note: It is unclear why federal authorities consider this law in compliance with the directives since it applies only to the vehicle operator and Rhode Island apparently repealed its alcohol consumption statute (31-22-21) in 1999 as part of this enactment.

South Carolina (61-4-110 and 61-6-4020)

Penalty: $ 100 or 30 days

A separate law (61-6-4720) prohibits drinking liquor "in a public conveyance. " It is not clear that this would include a private passenger motor vehicle however. The penalty is the same as above.

South Dakota (35-1-9. 1)

Penalty: Up to $ 200, up to 30 days, or both

Law includes possession and consumption.

Texas (49. 031)

Penalty: Up to $ 500 fine

Note: The law prohibiting consumption of alcohol while operating a motor vehicle (drivers only) was repealed as part of the open container enactment. Thus, the current law no longer explicitly addresses consumption while in an operating vehicle, only possession.

Utah (41-6-44-20)

Penalty: Up to $ 750, up to 90 days, or both

Law includes possession and consumption.

Washington (46. 61. 519)

Penalty: Traffic Infraction-Monetary penalties for traffic infractions can be up to $ 250 as determined by the supreme court in a published schedule. This offense appears to be an unscheduled infraction, for which the base fine is $ 37.

Law includes possession and consumption.

Wisconsin (346. 935)

Penalty: Up to $ 100 fine

Law includes possession and consumption.

Group 1-No Open Container Law/Prohibition on Driver Consumption While Operating Vehicle

Connecticut-Up to $ 500, up to three months, or both (CGS Sec. 53a-213

Delaware-$ 25-$ 200 (1st offense); $ 50-$ 400 subsequent offense (within one 1 year) (4177J)

Missouri-Up to $ 200 (577. 017)

Vermont-Up to $ 500 (23-1134)

Virginia-Up to $ 250 (18. 2-323. 1)

Group 2-No Open Container Law/Prohibition on Consumption Applies to Drivers and Any Occupants

Arkansas-Drinking in a public prohibited-No one may consume alcohol in any public place; on any highway or street; or upon any passenger coach, streetcar, or in any vehicle commonly used to transport passengers. (5-71-212) Penalty-Up to $ 100, up to 30 days, or both

Colorado-Drinking alcohol in any public place prohibited except in licensed on-premise establishments and, if 21 or older, in a limousine or charter bus (12-47-901(h)) Penalty-Up to $ 250

West Virginia-No one may drink alcohol in a motor vehicle on any highway, street, or alley or in a public garage (60-6-9). Penalty-$ 5-$ 100, up to 60 days, or both

Group 3-Open Container Law Applies to Driver Only/Alcohol Consumption Prohibited for Drivers Only

Alaska-Open container violations are infractions (28. 35. 029). Penalty-Up to $ 300. Consumption of alcohol while driving a vehicle is not explicitly prohibited by law but is a violation of the public safety administrative regulations (13 ACC 02. 545)

Louisiana-Up to $ 50. Law prohibits assessment of court costs in addition to the fine (32: 300).

Tennessee-Up to $ 50 (55-10-416) The law permits municipalities or counties to legislate their own prohibition on possession of an open container or alcohol consumption by passengers.

Group 4-Open Container Law Applies only in Special Circumstances/Consumption by Drivers Prohibited

Indiana-Open container violation applies only to a driver when he is found to have a blood-alcohol content of . 04% or more (IC 9-30-15-3). Consumption by a driver while operating the vehicle is prohibited under any circumstances (IC 9-30-15-4). Penalty-In either case, up to $ 1,000. Court may recommend a license suspension for up to one year for second unrelated open container violation within 12 months.

Maryland-Open container prohibition is limited to possession in public parking areas such as at malls or retail business establishments (Art. 2B, 19-301). Penalty-Up to $ 100. Separate law prohibits alcohol consumption while driving (Tran. 21-903). Penalty-Up to $ 500

Montana-A common carrier "or any other person" may not open or break any package or vessel containing an alcoholic beverage or allow it to be drunk or used while being carried or conveyed. However, it is not clear if this law's location in the liquor control statutes may limit its application only to those operating as common carriers.

Group 5-No Open Container Law/No Consumption Prohibition

Mississippi

Wyoming

Testing of Fatally Injured Drivers Only

Arizona (28-2642)-Mandatory

Note: Under a separate implied consent law, any driver involved in a traffic accident resulting in a death or serious physical injury can be requested to submit to a BAC test if a police officer (1) has "probable cause" to believe the driver caused the accident or (2) the driver was issued a citation for a traffic offense. The driver can refuse subject to the same penalties for test refusal that apply generally (28-673).

Massachusetts (C. 38-4A)-Mandatory, but limited to circumstances where driver dies within 4 hours of the accident and (1) he was the only vehicle occupant and (2) no one else was involved in the accident.

Michigan (257. 625a(6)(f))-Mandatory

Mississippi (63-22-7)-Mandatory, but law states that its intent is for samples taken under the requirements to be used "exclusively for statistical evaluation of accident causes. . . "

Note: A law separate from the state's implied consent law requires any driver involved in an accident that results in a death to be tested for alcohol or drug content of his blood, breath or urine. The law prohibits the person from refusing the test and allows test results to be used as evidence in a court or administrative hearing without the driver's consent (63-11-8).

Ohio (313. 13)-Mandatory

Texas (Code of Criminal Procedure Art. 4910(j))-Discretionary-Justice of the peace may order appropriate qualified person to take BAC sample from deceased driver if he determines that the circumstances indicate the person may have been driving while intoxicated.

Note: Under the implied consent law, a police officer can require someone to submit to a blood or breath BAC test if (1) he arrests the person for a drunk driving or other alcohol related penal code offense, (2) the person was involved in an accident that the officer "reasonably believes" occurred as a result of the offense, (3) at the time of arrest the officer reasonably believes someone has or will die as a direct result of the accident, and (4) the driver refuses to submit voluntarily to a test (Trans. Code 724. 012).

Testing of Fatally Injured Drivers and Pedestrians

Colorado (42-4-1304)-Mandatory-Pedestrian must be at least age 15. Death must have occurred within 4 hours of the accident. If vehicle driver cannot be immediately determined, sample must be obtained from all deceased vehicle occupants.

Note: A provision of the state's implied consent law allows a test sample to be taken forcibly from a person, even under physical restraint, if the officer has probable cause to believe that the person committed criminally negligent homicide with a motor vehicle, vehicle homicide, assault in the third degree with a motor vehicle, or vehicle assault (42-4-1301(7)(a)(IV); People v. Shepherd, 906 P. 2d 607)

Connecticut (14-227c)-Mandatory-In addition, blood or breath sample may be obtained from a surviving vehicle operator involved in the accident, "to the extent provided by law".

Idaho (49-314)-Mandatory when driver or pedestrian dies as a result of and "contemporaneously with" an accident.

Illinois (55 ILCS 5/3-3013)-Mandatory, but pedestrian must be at least age 16. Sample must be taken within 6 hours of the accident causing the death.

Note: The state's implied consent law allows a BAC test to be requested of anyone who is involved in an accident producing a personal injury (Type "A" Incapacitating) or fatality if the driver has been issued a citation for a non-equipment traffic offense (625 ILCS 5/11-501. 6).

Indiana (IC9-27-5-4(a))-Discretionary, but not admissible evidence-The state Department of Toxicology may require appropriate agencies to collect "necessary specimens" to the maximum extent practicable from a driver or pedestrian who is least age 15 and dies within four hours of an accident involvement. Also, to the maximum practicable extent and "consistent with legal rights," a test must also be conducted on each surviving driver in an accident that results in a death or serious bodily injury. However, these requirements are limited to collection of data for purposes of state accident research and are neither public records nor admissible as evidence in a court proceeding.

Minnesota (169. 09, subd. 11)-Mandatory if driver or pedestrian (age 16 or older) die within four hours of accident. However, the information may be used only "for statistical purposes" which do not reveal the identity of the deceased.

Nebraska (60-6,102)-Mandatory when driver or pedestrian (age 16 or older) dies within four hours of accident.

Note: In addition, subject to the state's penalties for test refusals under its implied consent law: (1) any surviving driver or pedestrian involved in a fatal accident must be asked to submit to a BAC test and (2) any person involved in any type of accident may be asked to submit to a BAC test if a police officer has "reasonable grounds" to believe he was driving under the influence of alcohol at the time of the accident (60-6, 103; 60-6,197(9)).

New Jersey (26: 2B-24)-Mandatory for drivers and pedestrians who die within four hours of an accident and for drivers who survive a fatal accident. An involuntary blood sample may be obtained from a person who has been arrested for a DWI offense (State v. Dyrl, 478 A 2d. 390). Another court decision has determined that whether a blood sample taken from a driver who is unconscious at the hospital after being involved in an accident fatal to someone else was proper requires an analysis of whether a judicial officer presented with the evidence available to a police officer at the time of the accident or within a reasonable time after would have issued a subpoena for the blood test (State v. Figueroa, 515 A 2d 242, cert. den, 526 A 2d 204).

New York (County Law 674(3)(b))-Mandatory for fatally injured drivers and pedestrians.

Note: New York's implied consent law provides for a compulsory, court-ordered chemical test under certain conditions. If a person refuses to submit to a BAC test, a police officer or district attorney can request and obtain a court order compelling submission to the test upon a finding of reasonable cause to believe that (1) the person was operating a vehicle and in the course of the operation another person was killed or suffered serious physical injury; (2) the person either operated the vehicle in violation of the drunk driving law or a field breath test administered by a police officer indicates that he had consumed alcohol; (3) he has been placed under lawful arrest, and (4) he refused to submit to a chemical test or is unable to consent to the test (1194(3)(b)).

South Carolina (17-7-80)-Mandatory if driver or pedestrian (age 16 or older) dies within four hours of accident. Coroner's examination must occur within eight hours of death.

Note: Another law (56-5-2946) requires a driver to submit to a BAC test if he has been arrested for or there is probable cause to believe he has violated a statute making it illegal to cause great bodily injury or death while in violation of the drunk driving law. However, the South Carolina Supreme Court has ruled that BAC evidence obtained under this law over the defendant's objection and refusal is inadmissible (State v. Mullins, 489 S. E. 2d, 923).

Utah (26-1-30)-Mandatory for fatally injured drivers and "adult" pedestrians.

Washington (46. 52. 065)-Mandatory when driver or pedestrian dies within four hours of accident.

Note: Under a provision of the state's implied consent law, someone arrested for a DWI offense may be compelled to submit to a test for alcohol and drugs if the arrest results from an accident in which someone else sustained serious bodily injury (46. 20. 308(3)).

West Virginia (17C-5B-1)-Mandatory when driver or "adult" pedestrian dies within four hours of accident.

Wisconsin (346. 71)-Mandatory for driver or pedestrian (age 14 or older) who dies within six hours of accident. Blood sample must be drawn within 12 hours of death.

Testing of Driver, Vehicle Occupants and Pedestrians

California (Govt. Code 27491. 25)-Mandatory when death occurs within 24 hours of the accident, but not applicable when deceased is under age 15, unless the surrounding circumstances indicate the possibility of alcohol, barbituric acid, or amphetamine derivative consumption.

Georgia (45-16-46)-Discretionary-coroner or police officer in charge of investigation may ask the medical examiner to take a blood sample from any person admitted to a hospital or morgue as a result of any casualty (not just a motor vehicle accident).

Hawaii (841-3)-Possible under coroner's general authority to make a complete investigation of the cause of death of anyone who dies as a result of an accident.

Note: Other law authorizes police to request a blood or urine sample following a collision resulting in injury or death if they have probable cause to believe that the person involved in the accident has committed a DWI offense (286-163). The person appears to have to be undergoing medical treatment at a hospital or medical facility for it to apply.

Kentucky (189. 590)-Possible under coroner's general statutory responsibility to report on the death of any person killed in a motor vehicle and the circumstances of the accident.

Note: Under the state's implied consent law, a court is not precluded from issuing a search warrant or other order requiring a blood or urine test from someone arrested for any drunk driving offense for an incident in which a person is killed or suffers physical injury (substantial physical pain or any physical impairment) as a result (189A-105(2)(b)).

Louisiana (32: 398 (H))-Possible as part of coroner's general duty to report on any death resulting from a motor vehicle accident and the circumstances of the accident.

Note: Under another law, a driver who is under arrest for any DWI offense cannot refuse to submit to a chemical test if he has been involved in a traffic accident resulting in a death or serious bodily injury. The officer may direct a physician, nurse, qualified technician, or chemist to perform the test in accordance with the law even without the driver's consent. In any other circumstances, a person can refuse to submit to a chemical test subject to certain sanctions (32: 666(A)).

Missouri (58. 445. 1)-Mandatory when anyone dies within eight hours, and as a result of, a motor vehicle accident. The coroner's or medical examiner's report and any test results must be used primarily for statistical purposes and are not public information. However, they can be released when requested by certain parties (anyone involved in the accident, his attorney or insurer, a spouse or immediate family member of a person killed in the accident, and certain others by subpoena).

Nevada (484. 394)-Mandatory for motor vehicle deaths occurring within eight hours of the accident.

New Hampshire (265: 93)-Mandatory whenever collision results in a death or serious bodily injury. Test requirement applies to anyone killed in the collision and to any surviving drivers. However, in the case of living drivers, a police officer must have probable cause to believe that the driver caused the collision.

New Mexico (24-11-6(B))-When chemical tests are performed on anyone whose death results from a motor vehicle accident, the report of the test results are for statistical use only, cannot contain any identification of the deceased, and are not subject to judicial process.

Note: Under the state's implied consent law, a driver arrested for a motor vehicle violation can refuse to submit to a chemical test except when a court issues a search warrant upon a finding of probable cause to believe, pursuant to a police officer's affidavit, that the driver has killed or done great bodily injury to another while under the influence of alcohol or has committed a felony while under the influence of alcohol or controlled substances and that the test results will produce material evidence in a felony prosecution (66-8-111).

North Dakota (39-20-13)-Mandatory within 24 hours of death. Results may be released only in a form that does not identify individuals, except through court subpoena in a civil or criminal action.

Note: Under another law, a driver involved in an accident resulting in another person's death or serious bodily injury "may be compelled by a police officer" to submit to a chemical test if there is probable cause to believe that he was driving under the influence of alcohol or drugs (39-20-01. 1).

Oregon (146. 113)-Mandatory if death occurs within five hours after the accident and person is over age 13.

Pennsylvania (75-3749)-Mandatory for all drivers and pedestrians over age 15 who die within five hours of an accident. It applies to deceased vehicle occupants (over age 15) only when the driver of the vehicle cannot be determined.

Note: A provision of the state's implied consent law (75-1547) applying to a driver involved in an accident in which any party to the accident is killed or requires treatment in a medical facility was found unconstitutional by the state Supreme Court because it did not require police to have probable cause of a crime prior to conducting the chemical test (Commonwealth v. Kohl, 615 A. 2d 308).

South Dakota (34-25-22. 1)-Mandatory "as soon as practicable" after death.

Tennessee (38-7-109)-Discretionary with the county medical examiner when in his judgment the procedure is justified to complete the investigation.

No Specific Mandatory Testing Law for Fatally Injured Drivers, Pedestrians or Vehicle Occupants But State May Have Accident-Specific Provision in Implied Consent Law

Alabama-State's implied consent law applies to a driver involved in an accident that results in death or serious physical injury provided a police officer has "reasonable grounds" to believe the driver was under the influence of alcohol or drugs (32-5-200). Driver can refuse the test subject to license suspension sanction that, if he is found not to have been at fault in the accident, may be reduced subsequently.

Alaska-Any driver involved in an accident can be asked to take a preliminary breath test if a police officer has "reasonable grounds" to believe that he was impaired by alcohol consumption (AS 28. 35. 031). Also, if a driver is under arrest for a DWI offense where an accident resulted in the death or physical injury of another, a chemical test for alcohol or controlled substances can be administered without his consent (AS 28. 35. 035).

Arkansas-The implied consent law authorizes a police officer to request any driver involved in an accident to submit to a chemical test for alcohol or controlled substances. The driver may refuse to submit to the test (5-65-202). If a driver is involved in an accident resulting in a death or where there is reason to believe a death may result, and there is probable cause to believe the driver is guilty of a DWI offense, a chemical test must be performed to determine the presence and percentage of alcohol or drugs. This includes fatally injured drivers. Test results go into a state database that may be used by state and local officials only for statistical purposes that do not reveal the identity of the deceased person (5-65-208). It is not clear the extent to which the information is available for any legal proceedings.

Delaware-Under the state's implied consent law, a chemical test is required when a police officer has "probable cause" to believe a driver was committing a DWI offense while operating the vehicle and there was an accident resulting in a fatality. If the officer does not believe such probable cause exists, he must file a written report providing the reasons for his determination (21-2740). Another law authorizes a police officer to take "reasonable steps" to conduct a chemical test even without consent if the officer seeks to conduct the test without informing the person of the license revocation penalty for refusal and thereby invoking the implied consent law (21-2742(a)). The Delaware Supreme Court has upheld the use of a stun gun as a reasonable step to secure a blood sample (McCann v. State, 588 A 2d. 1100). Thus it appears that if a police officer invokes the implied consent law, a sample cannot be taken involuntarily, but if he does not invoke the law prior to seeking the test, a sample can be taken by force.

District of Columbia-A driver must submit to a chemical test if he has been involved in an accident, regardless of whether an injury resulted, and he has been arrested for any alcohol-related driving offense (50-1902(b)). But it appears that this requirement is still subject to the test refusal provisions of the law, thus it does not appear mandatory.

Florida-If a police officer has "probable cause" to believe that a vehicle driven by someone under the influence of alcohol or a controlled substance has caused the death or serious bodily injury of someone else, the driver must submit to a chemical test if requested and the police officer may use "reasonable force" if necessary to require the driver to submit to the test (316. 1933).

Iowa-A driver who has refused a chemical test may still be required to submit to it through a search warrant issued pursuant to an investigation of involuntary manslaughter or causing unintentional death or injury with a motor vehicle where (1) a traffic accident has resulted in a death or personal injury likely to cause death and (2) there are reasonable grounds to believe that one or more people whose driving may have been the proximate cause of the accident was driving under the influence of alcohol or drugs (321J. 10).

Kansas-A police officer must request a chemical test from a driver if he has reasonable grounds to believe he was operating a vehicle under the influence of alcohol or drugs and he either has been arrested for the offense or has been involved in an accident or collision resulting in property damage, personal injury, or death. The law specifies that an officer has probable cause to believe the person was operating under the influence if the vehicle was operated "in such a manner as to have caused" the death of or serious injury to another person, in which case the test may be made by means of a search warrant issued pursuant to statute or under statutory authority for evidentiary searches without warrants following a lawful arrest. Taken together, it appears that for a test to be administered without a driver's consent, the driver's operation of the vehicle must be found to have actually caused the other person's injury or death (8-1001(b) and (k)).

Maine-A BAC test can be required of any driver involved in an accident where there is probable cause to believe a death has or will occur as a result of the accident. It appears possible for a driver to refuse to submit to the test subject to a one-year license suspension. The law states that a test result is admissible at trial if the court, after reviewing all the evidence, whether gathered prior to, during or after the test, is satisfied that probable cause exists, independent of the test result, to believe that the driver was under the influence of an intoxicant at the time of the accident. Thus, while probable cause of intoxication must eventually be established for the test result to be used at trial, probable cause need not be established at the time of the accident (29-A MRSA 2522).

Maryland-No law or special implied consent provisions pertaining to accidents.

Montana-No law or special implied consent provisions pertaining to accidents.

North Carolina-No law or special implied consent provisions pertaining to accidents.

Oklahoma-A person arrested for driving while intoxicated can refuse to submit to a chemical test except when the investigating officer has probable cause to believe that, while intoxicated, he drove the vehicle in a manner that caused the death or serious physical injury of another person (47-753). Also, any driver involved in a fatal accident "who could be cited for any traffic offense" must submit to a chemical test as soon as practicable after the accident. The traffic offense is deemed to constitute the probable cause required under the implied consent law (47-10-104(B)).

Rhode Island-No law or special implied consent provisions pertaining to accidents.

Vermont-Under a provision of the implied consent law, a surviving driver who has been involved in an incident or collision that results in a fatality or serious bodily injury is required to submit to a chemical test if a police officer has "reasonable grounds" to believe he has any amount of alcohol or drugs in his system. The driver can refuse to submit to the test subject to a license suspension sanction, but if he does, the police officer may still apply for a search warrant to obtain the blood sample. The law allows a driver asked for a sample under these provisions to consult an attorney before deciding whether to submit, but he must decide within 30 minutes. It also requires the driver to be given certain information about his rights and the consequences of a refusal and requires the state defender general to provide statewide 24-hour, seven-day coverage to assure that adequate legal services are available for consultation with drivers subject to the requirements (23-1202).

Virginia-No law or special implied consent provisions pertaining to accidents.

Wyoming-If a driver has been arrested for a DWI offense refuses to submit to a chemical test, the test cannot be given except in cases where serious bodily injury or death has resulted (31-6-102(d)).