Maryland Criminal Attorney Blog
Maryland DUI/DWI Lawyer/Attorney Can a person initially refuse to consent to a breathalyzer and then, upon further reflection, withdraw that refusal? And does that withdrawal of the refusal then constitute valid consent? The answer is a qualified yes. According to 16-205.1 of the Maryland Traffic code a person may withdraw an initial refusal to submit to a breathalyzer and then later consent to take a test of breath if the subsequent consent is unequivocal and it does not substantially interfere with the timely and efficacious administration of the the test.
I had a case in Baltimore County that presented this exact situation several months ago. My client was pulled over on I695 for speeding. He admitted to the officer that he had had 3 beers completing the last beer approximately 90 minutes prior to being stopped. He was asked to perform field sobriety tests and consented to do so. He believed that he had performed the tests virtually flawlessly but the State Trooper arrested him anyway. He was taken back to the State Police Barrack where he was read his rights and had the potential consequences of refusing to take the breath test or blowing over .08 explained to him. He initially said refused to consent to the breath test but then requested to use the telephone to contact his attorney.
The police allowed him to do so. (I have had several instances where the police refused to allow my client to call his attorney which constitutes a violation of the person’s rights and can lead to the inadmissibility of the tests at trial and an absolute defense to the administrative sanctions for refusing the test or blowing over .08.) My client then attempted to contact me but given that it was 3:00am was unable to do so. He then contacted another (obviously and insomniac) and discussed the situation with him at great length, almost an hour in fact. At this point the police told him that he had to make a decision as the two hour time limit was about to expire (in order for the result of the breath test to carry the legal presumptions that I have discussed in previous blogs, the breathalyzer must be administered within two hours from the time the person is arrested).
My client then agreed to take the breathalyzer but when he accompanied the officer into the other room to do so, there was another officer there with another suspected drunk driver preparing to take the test. The police told my client that they (the police) essentially had a first come first served policy on the breathalyzer. My client protested pointing out that his time limit was about to expire and asked if the other person was up against the limit. He was told that in spite of the fact that the other person had more than an hour left before his time limit expired, he would still be allowed to go first. By the time the machine warmed up and the other driver was finished with the test, my client’s time limit had expired and the police refused to allow him to take the test.
At both the MVA hearing as well as the trial, both judges found that my client’s unequivocal withdrawal of his earlier refusal to consent was made with sufficient time remaining in the two hour time limit. Both judges also concluded that it was unreasonable for the police to make him wait in line behind another driver who had plenty of time left to take the test simply because the other driver had gotten there first. He was found not guilty at trial and no action was taken against his privilege to drive at the MVA hearing.