To Blow or not to Blow: Should I take the Breath test if I am pulled over for DUI?

To Blow or Not to Blow: Should I Take the Breath Test if I’m Pulled Over for DUI?

This is one of the most common and difficult questions people face during a DUI stop in Maryland. The decision to take or refuse a breath test is a critical one, and it comes with significant consequences either way. While there’s no single “right” answer for everyone, a DUI attorney will explain that it’s essential to understand Maryland’s “implied consent” law before you make a choice.

What is Maryland’s Implied Consent Law?

Maryland’s implied consent law (Transportation Article Section 16-205.1) states that by simply operating a motor vehicle on the state’s roads, you have automatically given your consent to a chemical test (breath or blood) if a police officer has “reasonable grounds” to believe you are driving under the influence or impaired by alcohol.

This law creates a two-pronged problem for anyone facing a DUI stop: a criminal case and a separate administrative action by the MVA.

The Consequences of Refusing the Test

The immediate consequences of refusing a breath test are administrative, not criminal. If you refuse, the officer will confiscate your Maryland driver’s license on the spot. You will be issued a temporary paper license, valid for 45 days, and an Order of Suspension from the MVA.

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This is a sample of a portable breath testing device, not the intoximeter at the station.

  • First Refusal: Your license will be suspended for a period of 270 days.
  • Second or Subsequent Refusal: Your license will be suspended for two years.

These administrative penalties are completely separate from any criminal charges you may face. You can be found not guilty of the DUI charge in criminal court but still face a lengthy license suspension for your refusal. The refusal can also be used as evidence of guilt in your criminal case, with the prosecutor arguing that you refused because you knew you were impaired.

The Consequences of Taking and Failing the Test

If you take the breath test and the result is at or above 0.08% BAC, your license will also be suspended by the MVA.

  • First Offense (BAC 0.08% to 0.14%): Your license is suspended for 180 days.
  • First Offense (BAC 0.15% or higher): Your license is suspended for 270 days.
In this scenario, the breath test result becomes powerful evidence against you in the criminal case, making it much easier for the prosecution to secure a conviction.

So, To Blow or Not to Blow?

As you can see, the decision is a trade-off between two different sets of consequences.

  • Refusing: You avoid giving the prosecution a key piece of evidence (your BAC reading). However, you face an immediate and lengthy license suspension from the MVA, which is often longer than the suspension for a failed test. You also give the prosecution the ability to use your refusal as evidence of guilt.
  • Taking the Test: You provide the prosecution with direct evidence of your BAC. However, if you are a first-time offender and the result is between 0.08% and 0.14%, the license suspension is shorter. Taking the test may also open up the possibility of the state reducing the charge to a DWI, which is a less serious offense.

What a DUI Attorney Will Advise

Ultimately, the best decision depends on the specific facts of your case. A skilled DUI lawyer or criminal defense lawyer will tell you this is why you must act quickly.

Your DUI attorney can:

  • Immediately Request an MVA Hearing: You have a very limited time (10 days from the arrest to guarantee a hearing before suspension, 30 days to request one at all) to request an administrative hearing with the MVA to fight the suspension and/or enroll in the Ignition Interlock Program, which may allow you to continue driving.
  • Evaluate the Case: Your lawyer will review all the evidence, from the traffic stop to the police report, to determine if there were any legal flaws that could lead to the suppression of evidence, including the breath test results.
  • Develop a Defense Strategy: Whether you chose to blow or not, a criminal defense lawyer can build a defense that challenges the officer’s observations, the legality of the stop, or the accuracy of the breathalyzer itself.

The choice to take or refuse a breath test is one that you should ideally discuss with an attorney, even on the phone from the police station if possible. However, given the immediate and severe consequences, a qualified DUI attorney is your most valuable asset regardless of your decision.