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.
In the case of first offenders, my advice prior to January 1, 2006 used to be to tell the person go ahead and take the test if he believes that he is significantly under the influence. The rationale for this advice was that taking the test in no way prevents a person from later asserting Constitutional defenses such as an illegal stop or an illlegal arrest which are really the only viable defenses in most DUI cases these days for reasons I will explain in the next paragraph; and taking the test only subjected a person to 45 day restricted license, regardless of the person’s blood alcohol level, as opposed to a 120 day outright suspension or a year with the interlock device if the person refused the test.
The reason that Constitutional defenses are really the only viable defenses these days in most DUI/DWI cases is that if a person is truly under the influence an experienced police officer is going to make observations about his or her appearance and demeanor as well as the person’s physical and cognitive functioning and note these observations in his report. The officer will also request that the person perform standardized field sobriety tests which are the horizontal gaze nystagmus test, the one leg stand and the walk and turn. The officer will note the person’s performance on these tests in his report as well and the combination of these observations is more often than not sufficient for the prosecution to gain a conviction of at least driving while impaired even if the person refuses to take the breathalyzer test. Incidentally, the fact that a person was offered the opportunity to take a test and refused that opportunity will be conveyed to the judge or the jury leading to an obviously negative inference. Given that in the absence of a Constitutional defense the person would likely be convicted anyway there was really no reason for a first offender to refuse the breathalyzer and thereby subject himself to the harsher administrative suspension for refusing the test.
After January, 1 2006 the answer to the question of whether or not a first offender should take the breathalzyer got slightly more complicated but my advice remains to go ahead and take it. The law changed on January 1, 2006 so that a person who registers a blood alcohol level of .15 or greater is now subject to a mandatory 90 day suspension with no work restricted license or a period of at least one year with the interlock device installed in his or her car. So the benefit to taking the test, at least in cases where the BAC is over .15 has been all but eliminated but on balance I still recommend to take it and hope for a reading of .14 or lower. Of course if a person knows that that his or her reading will exceed .14 my advice would be to go ahead and refuse and take a chance that the officer is inexperienced and writes a poor report.
My advice to repeat offenders is to say as little as possible, do not participate in the field sobriety test and do not take the breathalyzer to give the person every conceivable avenue to avoid a second or subsequent conviction which is likely to cause the person to serve a prison sentence and to lose his or her license for an extended period.