Once you are arrested and arrive at the station you will
given a form explaining your rights with respect to the
breath test, and you must sign whether you will take the
test or refuse it. You probably will not be given a chance
to call a lawyer, so you will need to make the decision on
the spot. But should you take it?  This is a question you
need to answer for yourself.

The Breath Test

One of the most frequently asked questions about DUI is
whether a person should take the breath test. From the
standpoint of a lawyer thinking about a trial, it is nothing
but evidence against you.  Actually, it is more than just
evidence in some circumstances.  If you blow greater than
.08 blood alcohol content (BAC) you are "intoxicated per
se," meaning that the breath test result is all the proof the
judge needs to find you guilty.  Without it, the court has to
rely on other proof, such as the result of the field sobriety
tests. (As you can see if you read both of these sections,
with no field sobriety test and no breath test, the evidence
against you may be slight.)

By driving on Maryland roads, however, you consent to
take the breath test. Refusing to take the test will result in
losing your license for a substantial amount of time (120
days). It is also may result in an "enhanced penalty."
(worse sentence and/or fine)   Therefore, you have to
decide for yourself whether or not to take the test.
Consider the following:

If you take the test, the results will be admissible in court
to show what your blood alcohol concentration was. If it
was .08 or above, you are guilty of driving under the
influence by definition. If it was substantially higher than
that, say .14, then the judge knows that you were pretty
drunk, and there is a greater chance that you will go to jail.

If the judge does not have the results of the breath test, he
has only the officer's observations to determine whether
you were guilty of DUI / DWI. For example, did the cop
stop you because you were weaving, or because you were
speeding? Weaving could be used to infer that you were
drunk. Also, how did you do on the field sobriety test? If
you could not stand up, then maybe you were drunk
(another good reason to refuse the field sobriety test).

So, with the breath test results, the judge knows how much
alcohol was in your system, and it is a slam dunk for the
State to get a conviction for the more serious version of
driving under the influence (DUI per se). Without it, it is
much more likely that you would only be found guilty of
the lesser crime of DWI (driving while impaired), which
carries a much lighter sentence. This is particularly
importance if you are a repeat offender who was really
drunk when the officer stopped you.

The breath test can be challenged.  The test has to be
given within two hours of arrest.  The cop operating it has
to be qualified.  The machine has to be properly
maintained.  Proper procedures need to be followed.  
This is why you need a lawyer.
The Client
Comes First
Willis & Henderson, P.A.
Attorneys at Law
3290 North Ridge Road
Suite 210
Ellicott City, MD 21043

410-461-9400
DUI/DWI: The Breath Test