Statute 16-205.1 of the Maryland Transportation (Part 1)

Statute 16-205.1 of the Maryland Transportation Article: Major Changes in the Laws Affecting Drunk Drivers/ Drugged Drivers

The laws have major charges for persons who are driving drunk through alcohol/drugs or a combination and below are those changes.

At the Very end of This Statute and Below are Sections on Modifications of a Suspension – Getting a Restricted License

The changes have resulted by a police officer whose last name is Noah and who died because of a drunk driver negligently killing Police Officer Noah.

Before attempting to understand the many changes from reading the laws, it is best to have an attorney obtain the facts of your situation and analyze your needs and go over with you your options. To generalize about the law may result in a lack of how the law applies to you.

CALL ME, FRED ANTENBERG, FOR A FREE INITIAL CONSULTATION AT 410 730 4404

Calling from the police station is OK. WE HAVE A PORTABLE BREATHYLIZER and you have the RIGHT to have your attorney present before deciding whether you want to take the test.

Again, don’t expect to completely understand the law. It is both long, complicated and a challenge even for lawyers.

When you first obtained your driver’s license, you agreed that if the officer has the belief as described below that you were driving drunk/drugged, that you agreed to take a test as shown below but you can’t be compelled to take the alcohol or drug test. BUT there are sanctions (consequences) that may prevent you from having a driver’s license and the ability to drive. Also, understand that there may be ways to achieve a valid driver’s license with specific conditions such as the placing of a device on your vehicle that each time you attempt to start your vehicle you must blow into the device. The device will determine whether you have alcohol in your system.

Here is where we can help. Call me, Fred Antenberg, 410 730 4404

Again you may need to read the statute several times to understand.

There are two separate venues here and they are

  1. Criminal Offense - when the officer has issued a citation(s), you must appear at District o Circuit court. (Do not pay fines of citations that are non must appear.)

  2. Appearance before an administrative judge at the Office of Administrative Hearing under Maryland’s Implied Consent Law. This last area (B.) that mostly applies to what we are describing now.

    Both exist and it is very easy to confuse both as there are very specific applications to each and it is easy to confuse the laws from one to the other.

§ 16-205.1. Suspension or disqualification for refusal to submit to chemical tests for intoxication

  1. Definitions; implied consent to chemical test. --
      1. In this section the following words have the meanings indicated.

      2. "Specimen of blood" and "1 specimen of blood" means 1 sample of blood that is taken, in a single procedure, in 2 or more portions in 2 or more separate vials.

      3. "Test" means, unless the context requires otherwise:

        1. A test of a person's breath or of 1 specimen of a person's blood to determine alcohol concentration;

        2. A test or tests of 1 specimen of a person's blood to determine the drug or controlled dangerous substance content of the person's blood; or

        3. Both:

          Typically, you will be provided with the option to take the breathalyzer or refuse to take it. However, if you are taken to a hospital for injuries as a result of an accident involving drugs or alcohol, the hospital will take a blood test that may show alcohol and/or drugs in your blood. These tests are admissible at trial in the district court or circuit court. See below:

          1. A test of a person's breath or a test of 1 specimen of a person's blood, to determine alcohol concentration; and

          2. A test or tests of 1 specimen of a person's blood to determine the drug or controlled dangerous substance content of the person's blood.

      4. "Under the influence of alcohol" includes under the influence of alcohol per se as defined by § 11-174.1 of this article.

    1. You can be driving on a public road or a private road used by the public.

    2. Any person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State is deemed to have consented, subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a test if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while impaired by a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title.
  2. No compulsion to take chemical test; consequences of refusal. – Here you are protected by your 5th Amendment Right against Self Incrimination.

    1. Except as provided in subsection (c) of this section, a person may not be compelled to take a test. However, the detaining officer shall advise (if English is not your first language – you are entitled to an interpreter) the person that, on receipt of a sworn statement from the officer that the person was so charged and refused to take a test, or was tested and the result indicated an alcohol concentration of 0.08 or more, the Administration shall:

      1. In the case of a person licensed under this title:

        1. Except as provided in items 2, 3, and 4 of this item, for a test result indicating an alcohol concentration of 0.08 or more at the time of testing:

          1. For a first offense, suspend the driver's license for 180 days; or
          2. For a second or subsequent offense, suspend the driver's license for 180 days;
        2. Except as provided in item 4 of this item, for a test result indicating an alcohol concentration of 0.15 or more at the time of testing:

          1. For a first offense, suspend the person's driving privilege for 180 days; or
          2. For a second or subsequent offense, suspend the person's driving privilege for 270 days;
        3. Except as provided in item 4 of this item, for a test result indicating an alcohol concentration of 0.08 or more at the time of testing, if the person was involved in a motor vehicle accident that resulted in the death of another person:

          1. For a first offense, suspend the person's driving privilege for 6 months; or
          2. For a second or subsequent offense, suspend the person's driving privilege for 1 year;
        4. For a test result indicating an alcohol concentration of 0.15 or more at the time of testing, if the person was involved in a motor vehicle accident that resulted in the death of another person:

          1. For a first offense, suspend the person's driving privilege for 1 year; or
          2. For a second or subsequent offense, revoke the person's driving privilege; or
        5. For a test refusal:

          1. For a first offense, suspend the driver's license for 270 days; or
          2. For a second or subsequent offense, suspend the driver's license for 2 years;
      2. In the case of a nonresident or unlicensed person:

        1. Except as provided in items 2, 3, and 4 of this item, for a test result indicating an alcohol concentration of 0.08 or more at the time of testing:

          1. For a first offense, suspend the person's driving privilege for 180 days; or
          2. For a second or subsequent offense, suspend the person's driving privilege for 180 days;
        2. Except as provided in item 4 of this item, for a test result indicating an alcohol concentration of 0.15 or more at the time of testing:

          1. For a first offense, suspend the person's driving privilege for 180 days; or
          2. For a second or subsequent offense, suspend the person's driving privilege for 270 days;
        3. Except as provided in item 4 of this item, for a test result indicating an alcohol concentration of 0.08 or more at the time of testing, if the person was involved in a motor vehicle accident that resulted in the death of another person:

          1. For a first offense, suspend the person's driving privilege for 6 months; or
          2. For a second or subsequent offense, suspend the person's driving privilege for 1 year;
        4. For a test result indicating an alcohol concentration of 0.15 or more at the time of testing, if the person was involved in a motor vehicle accident that resulted in the death of another person:

          1. For a first offense, suspend the person's driving privilege for 1 year; or
          2. For a second or subsequent offense, revoke the person's driving privilege; or
        5. For a test refusal:

          1. For a first offense, suspend the person's driving privilege for 270 days; or
          2. For a second or subsequent offense, suspend the person's driving privilege for 2 years; and
      3. In addition to any applicable driver's license suspensions authorized under this section, in the case of a person operating a commercial motor vehicle or who holds a commercial instructional permit or a commercial driver's license who refuses to take a test:

        1. Disqualify the person's commercial instructional permit or commercial driver's license for a period of 1 year for a first offense, 3 years for a first offense which occurs while transporting hazardous materials required to be placarded, and disqualify for life if the person's commercial instructional permit or commercial driver's license has been previously disqualified for at least 1 year under:

          1. § 16-812(a) or (b) of this title;
          2. A federal law; or
          3. Any other state's law; or
        2. If the person holds a commercial instructional permit or a commercial driver's license issued by another state, disqualify the person's privilege to operate a commercial motor vehicle and report the refusal and disqualification to the person's resident state which may result in further penalties imposed by the person's resident state.

    2. Except as provided in subsection (c) of this section, if a police officer stops or detains any person who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while impaired by a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title, and who is not unconscious or otherwise incapable of refusing to take a test, the police officer shall:

      1. Detain the person;
      2. Request that the person permit a test to be taken;
      3. Advise the person of the administrative sanctions that shall be imposed for test results indicating an alcohol concentration of at least 0.08 but less than 0.15 at the time of testing;
      4. Advise the person of the administrative sanctions, including ineligibility for modification of a suspension or issuance of a restricted license unless the person participates in the Ignition Interlock System Program under § 16-404.1 of this title, that shall be imposed for refusal to take the test and for test results indicating an alcohol concentration of 0.15 or more at the time of testing;
      5. Advise the person of the additional criminal penalties that may be imposed under § 27-101(x) of this article on conviction of a violation of § 21-902 of this article if the person knowingly refused to take a test arising out of the same circumstances as the violation; and
      6. Advise the person that a court shall impose participation in the Ignition Interlock System Program as part of the sentence in accordance with § 27-107.1 of this article.
    3. If the person refuses to take the test or takes a test which results in an alcohol concentration of 0.08 or more at the time of testing, the police officer shall:

      1. Confiscate the person's driver's license issued by this State;
      2. Acting on behalf of the Administration, personally serve an order of suspension on the person;
      3. Issue a temporary license to drive;
      4. Inform the person that the temporary license allows the person to continue driving for 45 days if the person is licensed under this title;
      5. Inform the person that:
        1. The person has a right to request, at that time or within 10 days, a hearing to show cause why the driver's license should not be suspended concerning the refusal to take the test or for test results indicating an alcohol concentration of 0.08 or more at the time of testing, and the hearing will be scheduled within 45 days; Very important that the request is made within 10 days of the arrest. If not made in ten days, there may be an interruption of your driving privilege.

          Here is where we can help- Call me Fred Antenberg at 410 730 4404

        2. If a hearing request is not made at that time or within 10 days, but within 30 days the person requests a hearing, a hearing to show cause why the driver's license should not be suspended concerning the refusal to take the test or for test results indicating an alcohol concentration of 0.08 or more at the time of testing will be scheduled, but a request made after 10 days does not extend a temporary license issued by the police officer that allows the person to continue driving for 45 days;

          We send the request by certified mail and if you are prejudiced by not having your license continued on a temporary basis, the certified mail may support the prejudice assertion.

      6. Advise the person of the administrative sanctions that shall be imposed in the event of failure to request a hearing, failure to attend a requested hearing, or upon an adverse finding by the hearing officer;

      7. Inform the person that, if the person refuses a test or takes a test that indicates an alcohol concentration of 0.08 or more at the time of testing, the person may participate in the Ignition Interlock System Program under § 16-404.1 of this title instead of requesting a hearing under this paragraph, if the following conditions are met:

        1. The person's driver's license is not currently suspended, revoked, canceled, or refused; and
        2. Within the same time limits set forth in item (v) of this paragraph, the person:
          1. Surrenders a valid Maryland driver's license or signs a statement certifying that the driver's license is no longer in the person's possession; and

          2. Elects in writing to participate in the Ignition Interlock System Program for 1 year;

            Many individuals have respiratory problems and require their Interlock device to be calibrated at a level consistent with their respiratory issue. Here again is where we can respond to your need and have you seen by a physician who is knowledgeable of how to prescribe the proper calibration of your Interlock device. Call me, Fred Antenberg at 410 730 4404.

            Here are procedures that the police must provide. If not performed properly, it may result in your ability to prevail at an Administrative Hearing.

      8. Provide information about the Ignition Interlock System Program and how a person participates in the Program under § 16-404.1 of this title; and

      9. Within 72 hours after the issuance of the order of suspension, send any confiscated driver's license, copy of the suspension order, and a sworn statement to the Administration, that states:

        1. The officer had reasonable grounds to believe that the person had been driving or attempting to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while impaired by a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title;

        2. The person refused to take a test when requested by the police officer, the person submitted to the test which indicated an alcohol concentration of 0.08 or more at the time of testing, or the person submitted to the test which indicated an alcohol concentration of 0.15 or more at the time of testing; and

        3. The person was fully advised of the administrative sanctions that shall be imposed, including the fact that a person who refuses to take the test or takes a test that indicates an alcohol concentration of 0.15 or more at the time of testing is eligible for modification of a suspension or issuance of a restricted license.

          There may be facts or circumstances where the officer did not comply with the above, especially number 3. We can help you. Call Fred Antenberg at 410 730 4404

  3. Circumstances under which chemical tests required; administration; liability. --
    1. If a person is involved in a motor vehicle accident that results in the death of, or a life threatening injury to, another person and the person is detained by a police officer who has reasonable grounds to believe that the person has been driving or attempting to drive while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while impaired by a controlled dangerous substance, or in violation of § 16-813 of this title, the person shall be required to submit, as directed by the officer, to a test of:

      1. The person's breath to determine alcohol concentration;

      2. One specimen of the person's blood, to determine alcohol concentration or to determine the drug or controlled dangerous substance content of the person's blood; or

      3. Both the person's breath under item (i) of this paragraph and one specimen of the person's blood under item (ii) of this paragraph.

    2. If a police officer directs that a person be tested, then the provisions of § 10-304 of the Courts and Judicial Proceedings Article shall apply.

    3. Any medical personnel who perform any test required by this section are not liable for any civil damages as the result of any act or omission related to such test, not amounting to gross negligence.

  4. Procedure where individual incapable of refusing test. --
    1. If a police officer has reasonable grounds to believe that a person has been driving or attempting to drive a motor vehicle while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while impaired by a controlled dangerous substance, or in violation of § 16-813 of this title, and if the police officer determines that the person is unconscious or otherwise incapable of refusing to take a test, the police officer shall:

      1. Obtain prompt medical attention for the person;
      2. If necessary, arrange for removal of the person to a nearby medical facility; and
      3. If a test would not jeopardize the health or well-being of the person, direct a qualified medical person to withdraw blood for a test.
    2. If a person regains consciousness or otherwise becomes capable of refusing before the taking of a test, the police officer shall follow the procedure set forth in subsection (b) or (c) of this section.

  5. Administration of tests. --
    1. The tests to determine alcohol concentration may be administered by an individual who has been examined and is certified by the Department of State Police as sufficiently equipped and trained to administer the tests.

    2. The Department of State Police may adopt regulations for the examination and certification of individuals trained to administer tests to determine alcohol concentration.