Maryland DUI/DWI: Refusal to Take a Blood, Breath or Urine Test

In Maryland, if you get pulled over for a DWI (driving while intoxicated) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Maryland law requires you to take a blood, breath, or urine test if an officer reasonably believes you are driving while intoxicated. Maryland’s “implied consent” law says that if you are lawfully stopped and detained by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken as soon as possible from when you were last driving.

You could be arrested for a DWI even if you are not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you. Generally, actual, physical control means that the driver is in the car and could make it move. Even if the driver is asleep when the officer arrives on the scene, a Maryland court could still decide that the driver had actual physical control of the car, especially if the key is in the ignition or if the headlights are on. To read more about the meaning of actual, physical control, see the case Atkinson v. State 627 A.2d 1019 (1993).

Additionally, Maryland’s implied consent law says that you consent to taking a preliminary breath test. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving while intoxicated. You do not have to take this preliminary test, and the officer should say so. Refusing it, however, probably won’t work in your favor. If the officer has some other reason to think you had been drinking and driving, then he or she can detain you and you cannot refuse without facing the penalties described below.

Penalties for Refusing to Take the Test

1st Offense

2d Offense

3rd Offense

Refusal to take test

120 day license suspension

1 year license suspension

1 year license suspension

In Maryland, the officer does not need to arrest you to request that you take a blood, breath, or urine test. He or she should tell you, however, that if you refuse, your license will be suspended for 120 days for your first refusal. For your second and any subsequent refusal, you lose your license for one year. The officer should also tell you that if you consent to the test but fail it – your BAC is .08% or more – your license will be suspended then, too. At that point, if you decide not to take a test, then the officer can’t force you to take one unless you were involved in an accident that caused serious injury or death. The officer will, however, take your license. In its place, he or she should give you a temporary license that is good for 45 days.

Additionally, the officer should inform you that you must request a hearing within 10 days if you want to challenge your suspension. If you do not want a hearing but need to keep driving, then you have another option. If this is your first refusal and if you were not involved in an accident when the officer asked you to take a test, then you could request a restricted license for one year while your car has an ignition interlock device.

Should You Refuse to Take a Mandatory DWI Test in Maryland?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DWI. In Maryland, the consequences for a DWI conviction include suspension of your license, fines, and possibly jail time. This is more severe than the penalties for refusing a test. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DWI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DWI.

Get Help With Your DWI

If you have been arrested on a DWI charge in Maryland or any other state, get help from an experienced DWI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DWI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DWI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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