Articles Posted in Breathalyzer

Maryland DUI/DWI Attorneys with decades of experience often find and successfully pursue defenses that less experienced attorneys find or even bother looking for. Unfortunately, many inexperienced DUI attorneys or attorneys who really specialize in areas of the law other than criminal defense, never look beyond the breathalyzer result, particularly in first offense cases that don’t involve an accident or any injuries. The thinking is that the first offender will in most cases receive probation before judgment (PBJ) anyway so why bother? The person won’t go to jail and will not get points on his or her license so a PBJ is really as good as a not guilty or a dismissal. I beg to differ.

Aggressive and Experienced DUI Attorneys
know that there is a world of difference between a PBJ and a not guilty verdict. First of all, even if the client does receive PBJ, he or she will almost certainly be required to pay fines, attend alcohol counseling and serve a period of supervised probation. There may be other time consuming and costly requirements placed upon the client as well such as community work service, AA meetings and shock trauma visits to name just a few. Moreover, the PBJ can NEVER be expunged from the person’s record so even though the defendant will not have points assessed by the MVA, a record of the PBJ will always be kept which means that if the person ever gets charged with DUI again – even many years later- the stakes will be much higher as he will be a repeat offender.

And on top of all of this, in a garden variety first offense there is little risk to the client in not accepting the plea bargain offered by the State as there is cases involving accidents or repeat offenders. I say this because most judges will grant the defendant PBJ even after a trial in which the defendant is found guilty, so in my view you may as well take a shot at the not guilty if you have any possible defense at all. There is really nothing to lose. Here are the facts of the case I had last week:
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As an Aggressive Baltimore Maryland DUI Attorney I have handled literally thousands of DUI cases both as a former prosecutor and as a defense attorney. I have written several times in this blog that it is extremely difficult these days to secure a not guilty in a DUI case on the issue of whether in fact the client was under the influence or impaired. I have won more than my fair share of DUI trials over the last 15 years since I left the State’s Attorney’s Office but the overwhelming majority have been on technical issues such as an illegal stop or the State’s inability to prove that my client was the operator of the vehicle.

I published a blog last week about a DUI trial that I won on the impairment issue but that was only one of two that week. I won a second on this issue in spite of the fact that my client had 3 recently consumed beer cans in the car when he was stopped and told the police that he would not do the field sobriety tests because he “would fail them”. That case was scheduled in the District Court for Baltimore County last Friday. Here are the facts:
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As a Baltimore Maryland DUI/DWI Lawyer, I have handled more than 5,000 DUI cases. I have blogged many times about the new laws that have been passed in recent years, particularly the DUI Per Se law, making it increasingly difficult to get Not Guilty verdicts for clients in these cases. More often than not, if the police have probable cause for the stop, it is a relatively easy matter for prosecutors to prove the balance of their case. particularly if the person submits to a breathalyzer and the result is .08 or greater.

I represented a client in Baltimore County District Court this week whose case proved to be one of the exceptions to the rule. In spite of the fact that she blew a .15 on the PBT at the scene, I secured her not guilty verdicts on each of the alcohol related offenses. Here are the facts:
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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:
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Breathalyzer machines, commonly used by Maryland police, detect and measure the alcohol present in air that is breathed out. During the consuption of alcohol, the alcohol crosses from the intestine into the bloodstream. When the blood circulating around the body gets to the lungs, some of the alcohol in the blood crosses into the air contained in the tiny sacs of the lungs. This same air, that is breathed out of the lung, contains alcohol that can be measured by breathalyzer machines.

Researchers have determined the ratio of breath alcohol to blood alcohol. The test result for a breathalyzer estimates the concentration of alcohol in the blood. Although different individuals have some variation, blood alcohol concentration (BAC) is approximately 2,300 times greater than breath alcohol concentration. Breath-alcohol analysis is fast and easy to use, unlike the more reliable blood test. This makes the Breathalyzer breath-test machine a useful tool of choice for Maryland police to monitor drunk drivers.

If a person’s BAC measures 0.10, it means that there are 0.10 grams of alcohol per 100 milliliters of blood. According to the American Medical Association, a person can become impaired when the BAC hits 0.05. The legal standard for drunkenness in Maryland is 0.08.

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.
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Just about the first question people routinely ask me when they find out that I am an Aggressive DUI/DWI Attorney is should they or shouldn’t they take the Breathalyzer if they are stopped by a police officer after they have been drinking. The answer to the question is somewhat more complicated than it used to be given recent changes in Maryland DUI/DWI law.
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I recently defended a DUI case in the District Court in Baltimore, Maryland. My client had an acceptable performance on the field sobriety tests, but when he took the breathalyzer he “blew” a .23. The legal limit in Baltimore and Maryland for drunk driving (DUI) is .08. This was almost three times the legal limit. The case was dismissed, however, when it was pointed out that the Baltimore City Police breath technician did not give the defendant the breath test within two (2) hours from the time of the stop.
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Under Maryland law, a breath reading .08 or above is per se guilt of driving while under the influence of alcohol. You will need to consult a skilled Maryland DUI lawyer immediately to protect your rights. A Maryland DUI attorney will help you prevent the MVA from suspending your license and help you in Maryland District court to avoid points, jail and other punitive measures.
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