Should you take the breath test when you are the subject of a DUI investigation in Maryland? This is a difficult question faced by most people arrested for DUI in Maryland. As a DUI defense attorney practicing in Ocean City and Salisbury, Maryland, I often help clients deal with the consequences of this important decision. Unfortunately, there is no black and white answer that applies to every situation.
First, always keep in mind that you are not required to take an alcohol concentration test (breath or blood) when it is offered by a police officer investigating a DUI unless you were involved in an accident that caused serious physical injury or death to another person. You must also consider that the result of the breath test will be used against you in court to prove that you are guilty of DUI or DWI if your result is a .08 or above. In addition, if your breath test result is .08 or above, the MVA will suspend your privilege and/or license to drive in Maryland for 45 days for a first offense, and if your BAC (blood alcohol content) is .15 or above you will lose your right to drive for 90 days.
On the other hand, if you refuse the breath test, then your privilege and/or license to drive in Maryland will be suspended for at least 120 days (more if you have previously refused a breath test). You cannot get a restricted license to drive for work and school if you refuse the breath test or if your BAC is a .15 or above.
If you have a commercial driver's license (CDL), the consequences of refusing the breath test or blowing over the limit are catostrophic for your CDL. Your CDL will be disqualified for a year for a first offense. Moreover, even if you get a PBJ for the offense, the MVA will still consider this a conviction for purposes of disqualifying your CDL. If you depend on a CDL for employment you should never drink any alcohol and drive a motor vehicle. You cannot afford the severe consequences.
Ultimately, when deciding to take the breath test in a Maryland DUI investigation you must weigh the court consequences of a DUI conviction versus the MVA consequences. Usually, a judge will give a probation before judgement (PBJ) sentence for a first DUI or DWI offense in Ocean City and Salisbury, Maryland. The PBJ means no "conviction" on your record and no points with the MVA. However, you may not get a PBJ if you were in an accident that caused injuries to another person. The local judges will usually give a 10-30 day jail sentence for a second conviction for DUI or DWI in Salisbury or Ocean City, Maryland.
Of course, if you are confident that your BAC will be under a .08 then you should take the breath test to avoid the 120 day suspension for a refusal. As a general rule, you are probably better off taking the breath test if you are a first offender even if you expect to blow over the limit. However, if you are highly intoxicated and expect that you will blow over a .15 then you should probably refuse the test even if you are a first offender. If this would be your second DUI/DWI offense then you should probably refuse the breath test because you will not get a PBJ which means you will get points and a suspension for the conviction anyway. In addition, you will probably be sentenced to a jail sentence if convicted.
In conclusion, there are many factors to consider when deciding whether to take a breath test during a DUI investigation in Maryland. Ideally, you should ask to consult with an attorney before making this difficult decision.