Do I Have to Take This Preliminary Breath Test?: 16-205.1 Maryland DUI Laws

Maryland DUI Law: Transportation Article Section 16-205.2

Request for Preliminary Breath Test

What it means: This section controls the administration of the preliminary breath test. This is the test that is offered by the police on the street and prior to the arrest. When the officer stops a vehicle and believes that he smells alcohol on the breath of the driver he will ask the driver to get out of the car, at this juncture he will do several things. The officer will observe the behavior of the driver as he alights from the car. If the driver places his hand on the door frame as he gets out, or leans on the car as he walks to the back of the car, if he sways, falls over, gets sick, trips, etc., all this will be documented in the officer's field notes and report against the driver.

When the driver reaches the rear of his car the officer will then ask the driver to do one of two things, either perform field sobriety tests right there or in the alternative, request the driver to take a Preliminary Breath Test. The field sobriety tests or "roadside gymnastics" have been discussed above and the author would reiterate not to engage any such test. They are engineered for failure and they are essentially subjectively graded by the officer who is trying to build a case against the driver. Do not perform or attempt to perform these tests, instead a driver should politely and respectfully decline to do the tests. Remember, the driver is NOT going home simply because he past any part of these tests. Once the hound dog officer smells alcohol on the Driver's breath, the Driver is going to the police station for a breath test.

Having said that, there may be one possibility to avoid the station house and that is the Preliminary Breath Test (PBT). This is a little black box about the size of two or three cigarette boxes which Officer Hound Dog will request that you blow into. She can then obtain a BAC number on the driver right from that box. This procedure could potentially be helpful in the circumstance where the driver really has only had one or two drinks or alternatively consumed alcohol many hours prior to being stopped. If this is not the case, the PBT is generally not a good idea because it will confirm the offices suspicions.

There are certain good things about the PBT:

            First, in order to properly administer the test to a driver, Officer Hound Dog must follow the Maryland DUI Law as dictated in Transportation Article 16-205.2. It says that the officer must advise the Maryland Driver of her legal rights regarding this particular test. This is generally done in writing if it is done correctly. This author's experience is that the officer does not correctly advise the Driver of her rights in this regard. The important thing to remember about a PBT is that the results are not admissible in Court by the State against the driver. However, if the score benefits the driver, ie., it is low, the Defendant may place the results of the PBT into evidence himself. This author was recently in Court and told the State's Attorney that I intended to use the results of the PBT myself and the state said "you can't do that, they are not admissible". I referred him to this section since he apparently never read it before.

            Second, if the police officer fails to advise the Defendant of his rights pursuant to this section it could cause some confusion for the driver when the driver is taken to the station house and requested to blow again. That is, a Maryland driver could have a real question as to why he is being asked to provide the very same breath sample that he already provided. The law that the officer is supposed to read to the driver tells the driver that this test has no bearing on the subsequent test that the driver may be asked to take, however, if Officer Hound Dog fails to advise the Defendant of that fact and the Defendant subsequently refuses the breath test, a genuine issue has been generated by the officer's failure to follow the Maryland DUI Law.

            The problem that a driver is confronted with is that after agreeing to take the PBT and agreeing to provide a breath sample, the police typically do not give the driver her score on the PBT test at that time. There appears to be some confusion as to whether the officer must do so at that time because telling the result may have significant bearing on what the driver does at the police station. The score on the PBT must ultimately be given to the Defendant because it is the Defendant's right to use the score in Court should he so desire. One potential way around this problem is if the driver is inclined to give the PBT sample then reach an agreement with the officer beforehand that if the test is taken, the results will be shared with the driver right then and there.

Maryland DUI Law

Transportation Code Section 16-205.2: Preliminary Breath Test

Administrative Hearings and Potential Loss of License under 16-205.1.

Chemical tests; effect of refusal

What it means: This is a very lengthy section of law that governs the MVA administrative hearing which will be required as a result of an alcohol stop. When a Maryland Driver is stopped for DUI on a Maryland roadway, be on public or private roadway, the officer confiscates the Maryland drivers license (not out of state licenses) and gives her a temporary license which is good for 45 days from the date of the stop. After 45 days the temporary license becomes invalid and a period of suspension begins for the driver. The length of the suspension varies depending on whether this was a first offense for the driver and whether the driver took the breath test at the police station. For a first offense, the suspension will be for 45 days and for a second offense, it is 90 days. The periods of suspension are documented on the DR-15 form which the officer must share with the driver prior to asking for a breath test.

It is incumbent on the Maryland driver to timely request an MVA hearing on the issue of the license suspension. At the time of this writing, the cost of the hearing is $125. If used to be $15 but the legislature apparently found it appropriate to increase the cost almost ten times. Once the hearing is timely requested, which means 10 days from the date of the arrest, the driver will then get an extension document in the mail. The extension document is valid until the time of the MVA hearing no matter how long it takes to get a date. Generally, it takes 45-60 days to get a hearing date. The extension document is valid during this entire period of time. The driver is advised to bring the temporary license/document and the extension document to the hearing as the Judge will ask for these documents at the beginning of the hearing.

The purpose of requesting and attending the MVA hearing is to request the Administrative Law Judge modify the 45 day period of suspension. Most people cannot be without their license for 45 days as they have to go to work and get their family to school, etc. A 45 day suspension could create a significant hardship. The MVA judges do have discretion to modify the suspension under certain circumstances.

A 45 day suspension may be modified in length and it may be modified for work purposes. That is, the period of the suspension can be lessoned by the judge is there is good cause for the request. Most judges do not generally shorten the period of the suspension, but with good cause, it is a possibility. However, most judges will authorize a modification of the suspension for work related activities, that means driving to work, home from work and during work. Obviously this is terribly important to the Maryland driver because it allows the person to continue to earn a living during the suspension. These modifications are permitted when the Defendant agreed to blow at the police station. If the Defendant refused to give a breath sample at the police station, the MVA judge is limited in what they are allowed to modify. That is, if a driver refused to blow, the judge may not shorten the 45 days suspension and the judge may not grant a work restricted license as previously discussed. However, there is still hope. A judge can order an interlock on the vehicle of the Defendant. If the Defendant agrees to accept the interlock, then there will be no period of suspension at all.

The interlock is a device which is wired into the car by one of several shops in Maryland that is authorized to do this. The device is generally not plainly visible to those outside the car however any driver of that car must blow into the interlock device in order to start the car. Also, while driving, the box will occasionally signal that it wants another breath sample in which case whatever driver is driving the car must blow into the box again. The box analyzes the breath sample to determine that there is no alcohol in the breath and if the sample is clean, the car continues to operate, if the breath sample has alcohol in it, then the car will cease to operate. Again, this is for any driver operating that car.

There is also a cost for the use of this box. It costs roughly $140 to initially install the box and it costs roughly $70 per month, every month for the monitoring of the box. That is, every month the car must be taken back to the shop where the box was installed for a download of the data in the box. If the box records any violations, ie. dirty breath samples, this could prove to be problematic for the Defendant as per her continued ability to drive.

When an interlock is granted to a driver, it is typically for a period of one (1) year. So the first decision that Maryland driver must make is whether she wants the box for one year or wants a general suspension for what is generally four (4) months for a first time refusal to give a breath sample at the police station. Most people opt for the interlock. The reader is cautioned of one important fact. If the interlock is ordered for a year, and the driver is good for ten (10) months and then has an infraction by having a "dirty blow" recorded in the box, it is likely that the MVA will order the box removed from the car and the general suspension to be invoked, that would be the entire four (4) months. That is, if one is almost completed the one year interlock, they do not get any credit at all should there be a violation recorded on the box. Use caution!

Maryland DUI Law

Maryland Transportation Article 16-205.1

Read More: Part 8

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