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Without an official sobriety test (and only the PBT results) can I be charged with a DUI per se?

College Park, MD |

I am 21 and was charged with DUI per se, Reckless, Negligent, and More Speed Than Reasonable. He did not charge me with DUI or DWI.

I drove to 7-11 and when I pulled into the parking space, I hit the breaks to late and the car hit the parking bump. Not extremely hard, but hard enough for someone to notice. There was no damage to the car and the parking bump was still bolted down. A cop saw it and he opened my door and asked me to step out of the vehicle. He gave me the horizontal gaze nystagmus test and the one leg-stand and concluded I was drunk and asked me to take the PBT. I blew a .24. After this he asked for my license and my registration. Eventually he charged me with the charges listed above. However, he did not arrest me. He did NOT take me to the station, d

Attorney Answers 3

  1. I practice in Washington State, but I'll do my best to answer your questions about your Maryland case. In Washington, the portable breath test (PBT) is admissible only for the purpose of showing the judge that the police had probable cause to arrest the suspect for DUI; it is not admissible to prove that you had a certain blood alcohol content. In Washington, as well as many other states, you can be convicted of DUI even if there is no breath test or blood draw if you perform poorly on the field sobriety tests. Although not DUI per se, the complaint can be amended. I do not know Maryland's rules regarding the admissibility of the portable breath test, but if they are the same as Washington's, the test is only good to show that the officer had probable cause to arrest and nothing more. It sounds like there may be a double jeopardy issue if you are being charged with both negligent driving and reckless driving. Unless the Maryland statutes provide for an element of negligent driving that is not also an element of reckless driving, you should not be charged with both offenses

  2. Yes, you can be charged with DUI per se. Whether the State can sustain a conviction is another question. The PBT is considered an investigative tool, but the results are not admissible in any court proceeding in Maryland. However, the results may be introduced in an administrative hearing for the MVA regarding your driving privileges.

    I would recommend consulting with an experienced DUI attorney in Maryland at your earliest convenience to discuss potential defenses.

  3. This is an interesting scenario. As I think you realize, DUI per se requires proof beyond a reasonable doubt that you blew .08 or higher. Without a test result, this charge can not be proven. The pbt is not admissable for that purpose! Of course, they may try to convict you of "lesser included offenses" when you go to court. In my opinion, there may also be 4th Amendment issues with the "stop" and the other actions taking by the police officer. Finally, if it even gets this far, the officers failure to take you in for admissable breath or blood testing can result in a favorable inference that you would have passed the test! Please have a lawyer with you to protect you from facing lesser charges and to object to substantive amendments to the citations, which are in fact the charging documents under Maryland law.

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