Deciding Whether to Take a Breathalyzer Test | Zirkin & Schmerling Law

Do I Have To Take A Breathalyzer Test?

taking the breath test

You’re driving down the road and a Maryland law enforcement officer stops you on suspicion of drunk driving. The officer is asking you to take a breathalyzer test. Do you have to take it? What will happen if you refuse? Will you go to jail?

No matter what you choose to do, contact a DUI defense attorney as quickly as possible. In the meantime, here’s a look at what Maryland law says about breathalyzer testing.

Should You Take the Test? Maybe or Maybe Not

It may be frustrating to hear this, but it’s hard to say whether you should take the breathalyzer test without knowing your exact situation. Maybe. Maybe not.

First, you should know that there are two types of breathalyzer tests.

One is a roadside test that comes up when officer interviews you at the location where they pulled you over. It’s called a Preliminary Breath Test and the officer will usually politely request that you take it by saying something like, “Before I can let you go, would you mind taking a quick breath test?”

There are no consequences for refusing to take a preliminary breath test. The officer is merely requesting it and you are definitely permitted to decline.

The second kind of breathalyzer test is much more official and takes place at the police precinct. At this point, you’ve been taken away from your car and although you’re not under arrest, the officer is holding you temporarily to conduct an investigation.

This time, the officer will read a lengthy Advice of Rights form aloud to you that includes information about the suspended license sanctions you will face if you refuse the breathalyzer test. The form also explains that if you take the test and give too high a reading, your license can be suspended, and you may face other consequences.

After reading the form, the officer will again ask you, “Would you take a breathalyzer test?” So now what? Should you say yes or no?

Learn the Seven Best Words to Say

If you refuse to take the official breathalyzer test at the police precinct, a variety of things could happen. In addition to having your driver’s license suspended for anywhere from six months to 2 years, you could face other repercussions that affect your life, income, and family. As a CDL driver, for example, you could lose your CDL license which could cause you to lose your job.

Of course, by refusing the test you also prevent the state of Maryland from having a vital piece of evidence against you. Breathalyzer tests are admissible in court.

It’s your choice to make. The officers aren’t allowed to pin you down and force you to submit to the breathalyzer test.

This is when you need to know the seven most important words you’ll ever say: I want to speak to my attorney. If you ask, an officer must suspend the interview and allow you to speak to your attorney. It may take some time and you’ll probably need to reach an attorney who’s available 24 hours a day, 7 days a week, year-round.

A DUI charge is a very serious situation and can happen at any time of the day or night. This is a critical point in your life and you shouldn’t do anything without legal representation. Reach out to a DUI defense attorney who can help you decide whether it’s a good idea to take the breathalyzer test.

Have a Legal Question About a Breathalyzer Test? We Have Answers

If you need to decide whether to take a breathalyzer test, the attorneys at Zirkin and Schmerling Law can help. Contact us or call us at 410-753-4611 to set up an appointment with one of our DUI attorneys today.

Video Transcript

Hi, I’m Erik Atas, head of the Criminal Defense department here at Zirkin and Schmerling Law. The purpose of this video is to answer the question in Maryland, do I have to take a breathalyzer test? And the answer to that question is maybe. Now I know that’s a very annoying answer and it sounds like a total lawyer’s answer but let me explain further.

First of all, there are two types of breathalyzers one may be given if they are pulled over on suspicion of drinking and driving. The first one is on the side of the road. Your car is still in view and the officer asks you before driving you anywhere, “Would you take a breathalyzer?” That is called a preliminary breath test. There are no consequences for refusing to take this test.

The second kind of breathalyzer test is much more official. It’s at the police precinct. The officer will ask you again, “Would you like to take a breathalyzer test?” But they won’t just ask it that way. They have a very long form that they have to read to you. It takes about 10 minutes for them to read this entire form. Once they’ve read to you that form, they will ask you, “Would you like to take a breathalyzer?” That form includes information about administrative sanctions if you refuse to take a breathalyzer test.

It will explain to you that if you take the breathalyzer and you give too high a reading, your license can be suspended. It’ll also explain to you that if you refuse to take the test, your license can be suspended. So what should you do?

Well, first, if you refuse to take this test in the criminal case, the state’s attorney will have one less piece of evidence against you. However, on the administrative side, you could have sanctions for refusing to take this test. Even more serious, if you’re a CDL driver and you refuse to take this test, you likely will lose your ability to use your CDL license for work.

What should you do? You should call an attorney. An officer has to let you, if you ask, have the opportunity to call an attorney. Our firm accepts calls 24 hours a day. You can reach me at (410) 356-4455. Thank you.