As a Maryland DUI/DWI Attorney I am frequently asked by friends and acquaintences whether they should take the breathalyzer if they are stopped for suspicion of Driving Under the Influence . This question is almost invariably followed by the statement, “because I have always heard that you should never take it”.
I am not completely sure where this idea that one should never take the breathalyzer came from, although I suspect it is simply dated advice that is still being recirculated because in my view, under most circumstances, a person who is stopped by the police should take the breathalyzer if asked to do so. Here’s why:
As most people are aware, significant changes have been made to the law regarding Driving Under the Influence over the past 20 years. For instance, 20 years ago the legal limit was a BAC of .12 as opposed to .08 today for Driving Under the Influence. In those days judges were also far more likely to give a well represented defendant the benefit of the doubt in cases where there was no breathalyzer. The administrative sanctions imposed by the MVA for refusing the breathalyzer were also far less severe than they are today. The bottom line was in those days not taking the breathalyzer gave you a better shot at being found not guilty in criminal court and did not subject you to extreme administrative penalties. It may very well have been sound legal advice to advise people to never take the breathalyzer before these changes.
Today, the police are trained much better than they were in the past and know how to observe and explain a suspects intoxicated behavior in language that is persuasive to judges and juries in most cases. Laws have also been changed to aid prosecutions in which the breathalyzer was not taken. For instance, it used to be the case that the State was not even allowed to mention the fact that a test was not taken to the judge or the jury. Today, they are allowed to argue to the judge or jury that they should draw a negative inference from the defendant’s refusal to submit to the breathalyzer.
In recent years judges have also been trained, and some my say also cajoled by groups such as MADD, into being much more likely to convict without the benefit of the test. Finally the administrative penalties are much harsher today than in the past. Today for a first refusal there is a mandatory suspension of 120 days. A second or subsequent refusal requires a suspension of a year. There is no provision for a work restricted license such as there is when the test is taken. The only way around the suspension is to participate in the interlock program for a year.
Unfortunately, the decision as to whether to take the test was further complicated a few years ago when the legislature changed the law to increase the adminstrative sactions for readings of .15 or greater. These higher readings now require a 90 days suspension that, like the refusal, may not be modified unless the person participates in the interlock program.
So what is my advice? Today, I tell people that if you are not completely intoxicated and it is your first offense, in most situations you are better off to cooperate fully to include taking the breathalyzer. For the reasons explained herein, there is really little to gain in criminal court by not taking the test and refusing to do so will ensure the much more onerous administrative sanctions I described. On the other hand, if the test is taken and the result is below .15, the person will only face a 45 day suspension that may be modified so that the person can drive to and from work. This is obviously far easier to deal with than a mandatory 120 day suspension or a year with the “blow and go”.