As a Maryland attorney known locally for defending persons charged with DUI and related offenses, I am often asked: "If I get pulled over for suspicion of DUI, should I take the breath test?" It's not a simple yes or no answer.
There are actually 2 different breath tests that a driver may be asked to take
The Preliminary Breath Test (PBT) is often offered to drivers immediately after the completion of the Standardized Field Sobriety Tests (SFST). The PBT is a hand held device with a short straw that a driver is asked to blow into. The officers often instruct the driver to blow into the straw as if he were trying to blow into a balloon. The results of the test are not accurate enough to be used as evidence against the driver in court. However, the results do give the officer some indication of whether there is alcohol in the driver's system or perhaps that the appearance of intoxication may be from something else. There is no sanction for refusing the PBT.
The other breath test, sometimes referred to as the chemical test for intoxication is almost always administered at a police station. If advised and administered properly, the results and/or the refusal to take the test are admissible at trial and also can lead to possible sanctions by the MVA and the court.
Implied Consent and the chemical test for intoxication
In Maryland, if a driver is stopped or detained and reasonable grounds exist to believe he has been driving or attempting to drive a motor vehicle while under the influence or impaired, the law deems that that driver has consented to taking a test to measure the alcohol or drug concentration in his system. This is known as implied consent.
Sanctions for refusing the chemical test for intoxication
In Maryland, the sanction for refusing the test is a 270 day (9 month) suspension of the driver's license or privilege to drive (if the driver holds an out of state license). If the driver had refused the test in the past the suspension is for 2 years. The driver cannot not request a modified suspension at a MVA hearing (to drive to/from work, school etc.). In addition, the court can impose a criminal penalty of $500 or imprisonment for up to 60 days.
Holders of CDLs faced even greater penalties.
Sanctions for blowing .15 or more
In Maryland, If the test results are .15 or more the suspension is for 180 days (6 months) for a first offense and 270 days (9 months) for a second or subsequent offense. And as with a refusal, a modified suspension is not available.
Sanctions for blowing .08-.14
In Maryland, If the test results are .08-.14 the suspension is 180 days (6 months) for a first offense and 1 year for a second or subsequent offense. A modification may be obtained at a MVA hearing for work, school and limited other purposes.
So Should I take the breath test or not?
Here's my response*:
1. Don't drink and then drive in the first place. Uber, Lyft, phone a friend. Don't drive.
2. If you ignore #1 but you believe you will blow under .06 (yes 6 because even at a .06 you could potentially be convicted) by all means take the test. At .05 there is a presumption of sobriety.
3. If you believe you will blow .08 to .14, the sanctions are much less than for a refusal and you might be able to get a modified suspension.
4. If you believe you will blow over .20, understand that the courts are often very much concerned by such a high reading.
*This is assuming the driver does not carry a CDL.
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