Refusing the Breath Test

During the holiday season, it is worth again being reminded not only of the risks to health and safety of driving while under the influence of alcohol, but the penalties that the law can provide for such conduct. Persons who are detained by the police who have reasonable suspicion that a driver is under the influence will likely be asked to take a breath test, and Maryland law defines the rights and consequences associated with such tests. Maryland’s highest court in the recent case of Motor Vehicles Administration v. Illiano discussed again how this law is applied.

The Maryland Transportation Article provides that a person who drives a motor vehicle on the Maryland highways is presumed to have consented to take a chemical test if the person should be detained on suspicion of driving or attempting to drive while under the influence of, or while one’s ability to drive is impaired by, consumption of alcohol and/or drugs. The police may use what is called a preliminary breath test, a device that can be used at the scene of the stop. Such preliminary tests are to be used as a guide to the officer in whether to arrest a driver, are not admissible against the driver, but may be used by the defendant if an arrest is made. There is no penalty associated with refusing to take a preliminary breath test.

With regard to the breath test offered at the police station after arrest, a person cannot be compelled to submit to such a test. The law says that the officer must read a form to the detained person, called a DR15 form, advising of the person’s rights including why she was detained, that under the law she is deemed to have consented to a test, that a blood test can be taken only if the breath test is unavailable, and the consequences of refusing the test. If the driver then refuses to take the test, she is subject to suspension of her license for 120 days, or for a year if this is a second offense.

Procedurally, when a driver refuses to take the breath test, the police confiscate that person’s license, deliver a suspension order and a temporary 45 day license, and a notice of the right to request a hearing with the Motor Vehicle’s Administration which will be held within the 45 day period. The issue at the hearing is whether the officer had reasonable grounds to believe the driver was under the influence.

In Motor Vehicle Administration v. Illiano, an officer was parked on the side of a highway at 2:00 am running radar when a car pulled up behind him on the shoulder. The officer decided to check on the driver, who rolled down the window whereupon the officer smelled alcohol. He then pulled his cruiser behind the car, saw the original driver change seats with her passenger, and according to the officer the defendant said she’d had two drinks and decided she was in no shape to drive. He claimed she failed field sobriety tests, and then ultimately she refused to take a breath test.

At the MVA hearing, the administrative judge refused to believe the defendant’s story denying any admissions to the officer, claiming she pulled over to switch seats because of a foot injury, and claiming she failed the field tests because her poor English made it hard for her to understand the officer’s instructions. The trial judge on appeal interpreted the law to mean the officer must have reasonable grounds to believe the driver was intoxicated when he made the original stop before a breath test could be ordered. The Court of Appeals held that the officer can develop such a suspicion even after stopping the driver for any number of legitimate reasons, and held that the ALJ’s finding supporting a suspension of her license was supported by substantial evidence.

Have a Happy and safe New Year.