DUI Breath Tests

Breath tests are the single and most important piece of evidence the State has in a trial for DUI. Whether you performed a breath test or refused, our attorneys know how that evidence will be presented, the arguments, and how to poke holes in their allegations. We have not only defended those accused of drinking and driving, but as a former prosecuting lawyer, Jason Mayberry has convicted many of those accused of driving under the influence. We are familiar with both sides of the fence in a driving under the influence trial and will methodically evaluate your case and map out a plan to eliminate breath test evidence against you or reduce the impact it has on your case. Our DUI lawyers use their knowledge of the system to ensure that you get the best possible result in your case.

Your decision to take a breath test and its results carries a wide range of implications. Breathe test results impact a potential driver’s license suspension period in addition to a possible presumption that you are impaired in a trial setting. Even if you refuse the breathalyzer you are not shielded from its effect at trial. Refusals are admissible as evidence of guilt and convictions can be achieved using an argument that you refused the breath test because you didn’t want to give the State valuable evidence of your impairment. Here is what you need to know about breath tests as they relate to your case:

  • If you refuse a breath test on a first offense, your DMV suspension will be 12 months as opposed to 180 days if you provided a breath test;
  • A second breath test refusal results in an 18-month license suspension as opposed to 12 months if you provided a breath test. A second breath test refusal prevents the individual from obtaining a hardship license during the pendency of their driver’s license suspension period.

After a breath test refusal, if your attorney is unsuccessful in overturning your DMV suspension, you will endure a period of 90 days of “hard time” without any ability to drive prior to eligibility for a hardship license. If you give a breath test above .08 your “hard time” period is 30 days.

Giving a breath test registering below a .08 generally prevents the DMV from issuing their administrative suspension.

Giving a breath test registering less than .05 will actually help your criminal case. Pursuant to Maryland Jury Instruction 28.1 a breath test of .05 or below gives rise to a jury instruction that jurors “shall” presume that the driver was NOT under the influence of alcoholic beverages.

Per Maryland  Jury Instruction 28.1, a breath test registering between .05 and .08 gives rise to NO PRESUMPTION at all during trial that the driver was or was not under the influence of alcoholic beverages.

Per Maryland  Jury Instruction 28.1, a breath test registering above a .08 gives rise to a presumption at trial that the driver was under the influence of alcoholic beverages to the extent his or her normal faculties were impaired. That evidence by itself is sufficient to find the individual is under the influence of alcohol without any other evidence submitted.

If you have previously refused to provide a breath test sample on a prior arrest, you can be charged with an additional first degree misdemeanor under Maryland Statute 316.1939 for a second or subsequent refusal. This Refusal to Submit to Testing charge carries with it a possible county jail term of up to 11 months and a $1000 fine.

For those under 21, driving with breath or blood-alcohol level above 0.02 results in a suspension for 6 months for a first offense and 12 months for a second or subsequent. A first time refusal of a breath test by one under 21 results in 12-month suspension period and 18 months for a second refusal.