It’s Your Choice… Don’t Blow It!

Breathalyzer Refusal Admissibility

In a criminal case, the prosecutor for the State of Maryland has the burden of proving your guilt beyond a reasonable doubt. This guilt is proven through what is called “admissible evidence”.

In Maryland evidence of refusal to take a breathalyzer test is admissible only where it is material and relevant to a matter other than guilt or innocence. Something is material and relevant when it pertains to proving your case in the court of law. Stated another way, without the evidence, it would be much harder to prove your case. Also, it is important to what specifically is trying to be proven, such as whether or not you were intoxicated. However, this notion that it cannot be used to prove guilt or innocence means refusal cannot be used to show that you must have been guilty or else you would have taken the test. Refusal could be used to show something like, for instance, that you were awake –because if you were asleep you wouldn’t have been able to refuse. This is a very particular type case that could get the refusal in and is not the norm, however.

Also there can be no inference or presumption based on the fact that you refused to submit to a breathalyzer test. Again, the judge cannot assume you would have blown over the State’s alcohol limit just because you refused to take a breathalyzer.

When you are pulled over, a police officer offers a portable [preliminary] breathalyzer at the scene. This breathalyzer tells the officer if you are over the legal limit of .08 or not, however this portable breathalyzer cannot be used against you by the State in court because it does not meet the specific scientific standards of validity and reliability. You have a right to have your lawyer come to the police station and advise you as to whether or not you should take the breathalyzer based upon a portable breathalyzer he or she may bring to the station.

You have 2 hours in which to decide whether to take the breathalyzer or not. See sanctions for refusal to take a breathalyzer. An experienced attorney will make a judgment based on the amount of alcohol you consumed and the number of hours it has been since your last drink.

It is wise to have your attorney present to administer a portable breathalyzer to you so you may, most importantly, make your decision as to whether to take the breathalyzer test by the police at the station. Also, this portable breathalyzer evidence is available to your attorney for trial preparation but not to the State. The availability of this evidence is important because if you took a shot of liquor 15 minutes prior to driving, as you sit at the police station this liquor has time to process in your body and increase your intoxication level. If you take a portable breathalyzer with your attorney and it is lower than the breathalyzer you take at the police station, you can admit this as evidence for your case because what you are being charged with is your level of intoxication closer to when you were driving. This evidence could mean the difference between Driving Under the Influence vs. Driving While Intoxicated or it might even help absolve you of guilt. It would be beneficial to you to call an attorney and have him/her conduct a portable breathalyzer so you can make the best decisions and have all the evidence you can get in your favor. Not all attorneys have portable breathalyzers. We do. If you call Fred Antenberg and he is available, he will come to the police station with a portable breathalyzer.

Now we know not only that you can’t be forced to take a breathalyzer but this refusal cannot be used as evidence against you in the court of law.

Fred Antenberg is a Criminal Defense Attorney who handles DUI/DWI matters in the Howard County and Central Maryland region. He can help you make the correct decision regarding the breathalyzer and review all evidence to build a case to defend your DUI/DWI charge. If you need a Howard County DUI Defense Attorney, CONTACT Fred today at 410-730-4404!