November 26, 1997

DWI: Should I the the Test?

The single question most often put to DWI defense lawyers is: Should I take (or more often, have taken) the test,referring to the breath test police officers offer to drivers stopped for DWI. Like so many other things in life, the answer is neither simple nor the same for every person or situation. This is because of the consequences of taking or not taking the test.

Consequences of taking the test:

If you take the test and your reading is in the range of.07 to .09 blood alcohol content (BAG, this constitutes prima facie evidence that you are "driving under the influence alcohol, (DUI), Maryland's least serious of its two drinking/driving offenses. Prima facie is latin meaning enough evidence in itself to convict you of the DUI offense. If your reading is .10 or greater, breath test evidence alone is sufficient to con- vict you of "driving while intoxicated" (DWI), Maryland's most serious drinking/driving offense. For a first offense of DUI you face a maximun sentence of 60 days in jail and a 6500.00 fine, although individuals in if you blow .1 O or above, Allegany County are you face up to a 45 day rarely sent to jail for a first offense and judges routinely impose less than the 6500.00 fine. .10 or above. But, the period of supervised probation, usually 1 year, required completion of an alcohol education program, and in some cases, other conditions of probation, usually 1 year, required completion of an alcohol education program, and in some cases, other conditions of probation such as restriction on your driver's license, abstinance from alcohol, attendance at Alcoholic's Annonymous Meetings, community service hours, and other restrictions. For a conviction of DWI, the maximum sentence for a first offense is one $1,000.00 fine, although, as with DUI, a first offender is usually not sent to jail or fined more than several hundred dollars. The period and conditions of probation are very similar and sometimes identical to those imposed for a first offense DUI convictition.

Consequences of taking the test:

A suspended license If you blow between a .07 and .09, there is no loss of your driving privilege for the test result itself If you are subsequently convicted of DUI, you can suffer a suspension of your driving privilege. On the other hand, if you blow .1 O or above, you face up to a 45 day suspension of your driving privilege, for a first offense, just for taking the test and registering .10 or above. But, the suspension can be modifed to allow a restricted license for employment and alcohol education purposes, if you and/or your attorney can convince an Administrative Law Judge to give you the restricted license.

Consequences of Refusing the test.

If you refuse the test, you face a 120 day suspension of our driving privilege, for a first offense, and the 120 day suspension can neither be shortened nor modified. You lose your license for 920 days, no ifs, and's or but's, unless you and/or your attorney can convince an Administrative Law Judge that the police officer or the Motor Vehicle Administration made some error in the

Did you know?

It is NOT against the law in Maryland to drive after having consumed alcohol. It IS against the law to drive after consuming enough alcohol to impair your driving abilities, or in legal terminology, "drinking to the extent of probably affecting one's judgement and discretion or probably affecting one's nervous system to the extent that there is a failure of normal coordination. It is also against the law to consume alcoholic beverages while driving. Therefore, avoid having open alcohol containers in your vehicle while you are driving and refrain from driving after you have drank enough to affect your judgement, coordination, discretion or reflexes.

Help with the Decision

The flashing lights come on behind you. The police pull you over and ask you to step out of the car. You perform some tests, recite the alphabet and before you fully realize the difficulfy you are in, the officer has taken you to the police station. The police officer reads you a long series of instructions and information in six minutes flat, which you cannot fully understand. Then, he or she asks you if you want to take the breath test. person arrested for DWI is asked to take a breath test, they are read what is known as the "DR15 Advice of Rights Form." This detailed form lists some Of the outcomes you can expect if you take fhe test, or if you refuse it. Not all ofthe possible outcomes are listed on the form, however. How do you decide what to do? Neither the DR15 nor the police officer who arrested you will tell you this, but you have the right to consuit with a lawyer before deciding whether to take the test. The highest court in Maryland, before a Maryland, the Court of Appeals, has said that the decision whether or not to take the test is too important to deny a person a right to an attorney. As long as it does not interfere with the police breath test, a person can discuss his case with a lawyer over the phone. A person arrested for DWI can person arrested for DWI can police station and meet privately with the person. The police are required to give you their breath test, known as the "breathalyzer," within two hours of arrest. Therefore, so long as waiting to speak to your attorney would not take the test beyond the two hours allowed, the police must let you speak to police must let you speak to should be made carefully and with him or her upon request. In fact, the Court allows the lawyer, if he physically comes to the station as a tester. Before deciding whether to take the police breath test, person can take a private test and discuss it with his lawyer. The police will never know about this private test. It is not admissible by the State in any subsequent criminal prosecution against the person. It is an extremely useful tool for your lawyer in providing you with advice, and for you in deciding whether to take the police breath test. This private test, however, again cannot interfere with the police test. Therefore, your lawyer must come to the station, administer the test, discuss the results with you and have you make a decision before the two hours is up. Time is critical in this situation. If arrested for DWI, good advice from a lawyer can be a valuable asset. Ifyour lawyer can come in person with a portable breath tester, that advice will be that much stronger based on solid knowledge of your situation. A decision as important as whether or not to take the police "breathalyzer," with its possibilities of criminal prosecution and suspension of your license, should be made carefully and with all the information.