Maryland's Chemical Test for DUI Impairment BAC and Marijuana

At present, Maryland has largely relied upon it's breath testing program to support the charge of drinking and driving. That is to say that Maryland uses a breathalyzer machine known as the EC/IR to test the breath alcohol content of defendants charged with driving while impaired or DUI. The law regarding such breath testing is fairly specific in that it requires law enforcement to read a specific form of rights to a defendant prior to that defendant blowing in the machine. That form is known as the DR – 15. It is a fairly lengthy and complicated form which describes to the defendant what will happen if he blows a specific number and it also describes what will happen if the defendant refuses to blow in the machine. The MVA will in fact impose an administrative penalty against a defendant driver if they refuse to blow in the machine. Police in the state of Maryland and most states throughout the country rely fairly heavily upon their chemical test program to enforce the DUI charges. There are however alternatives to breath testing if a person refuses to blow.

If there is an accident with injuries and a defendant driver refuses to blow the police officer can take the defendant to a local hospital and request a medical provider to forcefully withdrawal blood from the person’s arm if necessary. The present state of the law is that law enforcement cannot force a blood draw unless there has been an accident with serious or life-threatening injuries. Additionally if the defendant driver does agree to blow in a breathalyzer machine and the number comes back .00 indicating no alcohol involvement yet the driver still appears to be impaired, law enforcement can still request a blood test at the hospital. If the defendant declines to give a blood sample for any reason under these circumstances that defendant can still be marked down as a refusal and the MVA can still take action against that person’s license. This does seem a little unfair for those people who do not like to be poked and prodded by the government or those people who are simply afraid of needles. Either way welcome to law enforcement in the 21st century.

Interestingly, as Maryland moves closer to the legalization of marijuana, there will have to be new legislation enacted regarding blood tests to determine the impairment of a driver affected by THC the active ingredient in marijuana. Obviously the standard breath test will not reflect the utilization or impairment of marijuana however a blood or urine test may be the solution to this problem for the government. This however leads to the next problem of what level of THC in the blood is permissible before attaching an impairment finding. So for example the government at present utilizes the arbitrary number of .08 to find impairment but of course this is strictly arbitrary as in the old days it used to be .15 and then it dropped to .10 and now the government believes that .08 is the level of impairment. In the years to come we may see that number dropped to .05 and then one day it may go to where it belongs at .00. The government will have to come up with an equally arbitrary number for the use of marijuana.

It certainly will be interesting to see how the government handles this predicament as they move closer to legalization of marijuana in an effort to benefit from the anticipated windfall of tax revenue which will come from the sale of marijuana as it has in other jurisdictions such as Colorado and Washington. One thing is true however and that is the savings that can be anticipated from law enforcement officers not running around trying to arrest those with small amounts of marijuana on their person and then incarcerating these people. It is certainly true that not wasting time and resources on these types of matters will certainly be a boon to all people involved. Stay tuned here for updates on the marijuana trade as they become available.

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