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Jason A. Shapiro Weighs In On Whether to Take or to Refuse the Breath Test…LISTEN UP!


By: Jason A. Shapiro

“Perhaps one day, the politicians will enact some effective DUI laws, rather than pander to their constituents claiming to be tough on crime. Until then, refuse the test.”

Maryland has adopted a law of implied consent that when people are licensed in this State, or drive upon its highways, they will take the breath test.  If not, they could lose their privilege to drive on the roads of Maryland.  Seems straight forward, but things are not what they seem.

Years ago, Maryland’s politicians wanted to crack down on drunk driving.  They adopted the law that said if people adhere to the implied consent and give a breath sample, that breath can be used against them in a criminal prosecution, but the MVA would not preemptively take their licenses.  Obviously, if convicted and points were assessed, the MVA could then weigh in as to whether that driver should be only to continue to drive.  However, if someone refuses to take the breath test, those drivers violate the implied consent law and were presumed to be a threat to public safety.  As a result, the arresting officer would seize the driver’s license, issue a 45 day temporary license, and if a hearing was requested in time, give that driver a MVA hearing within 45 days to determine whether he should be allowed to continue to drive.

Then the politicians decided they needed to get tougher on impaired drivers.  A 45 day temporary license was then issued to two classes of drivers: (1) Those that refused the test; and (2) Those that had a blood alcohol content that exceeded the legal limit.  To make it attractive to take the test, the legislature gave out two different penalties: (1)  Refusers had two choices: (a) a 120 Day suspension or (b)  1 year with an interlock device installed in any car which may be driven by the offender;  (2)  those who took the test also had two choices: (a) a 45 day license suspension or (b) a 45 day restricted license that allowed drivers to drive to and from and in the course of their employment, to counseling, and possibly to school.  For those who took the test, it’s a no-brainer.  All opted for the restricted license.

However, effective October 1, 2008, a law came into effect that makes no sense.   That law creates a third category of drivers for administrative penalties.  It targets the “super drunk,” those who are approximately double the legal limit or more (.15%  blood alcohol content (“BAC”) or more).  For those drivers, no restricted license is an option, despite a driver’s compliance with Maryland’s law of implied consent.  Instead only two sanctions are available:  (1) a 90 day license suspension, or (2)  1 year with an interlock device installed in any car which may be driven by the offender.

The reason why this law makes no sense is because almost all first offenders are more concerned about the loss of license than criminal prosecution.  Therefore, they take the test, hoping to blow under .15% BAC.  However, many misjudge how much they have consumed and thus, not only do they offer the prosecution a breath sample to be offered in evidence against them, they also subject themselves to same MVA sanctions if they had refuse the breath test (the 1 year interlock).  Thus, the politicians have created a situation for first time offenders where, unless very little alcohol was consumed, it makes more sense to refuse to take the breath test. The MVA sanction will most likely be the same if one refuses or takes the test, but by refusing the driver gives us a more than likely chance of having the criminal prosecution dismissed.  Furthermore, although the politicians say that these laws are necessary to get impaired drivers off of the streets, the politicians merely made the laws tougher but did not appropriate enough money to hire judges and clerks to carry out the new tough laws.  As a result, extensions to the 45 day temporary license are routinely issued as it may take three to four months before a driver’s MVA hearing will be scheduled.  So much for getting the dangerous drivers off the road in less than 45 days.

How does the repeat offender fare under the new breath test law effective October 1, 2008?  Forget about taking the test, as there is zero incentive to give a breath sample.  Refuse, blow over .15% BAC, or blow just a bit over the limit, either way, the MVA will not give a restricted license.  Therefore, it’s either a suspension or the interlock. Thus, the law encourages drivers to refuse, as he MVA sanction will be the same, but a refusal allows us to have a fighting chance to achieve an acquittal.

Perhaps one day, the politicians will enact some effective DUI laws, rather than pander to their constituents claiming to be tough on crime.  Until then, refuse the test.