The results of a breathalyzer test can affect what criminal charges are filed against you and can affect your driving privileges. In most drunk driving cases, the breathalyzer test is the key evidence against a driver. If the results of the breathalyzer test can be excluded, many defendants can walk away from the charges and the charges will be dismissed. If the results are admitted, we can work to explain negative results, but those explanations will be an uphill fight.
In Maryland, you can be charged with Driving Under the Influence (DUI) if your blood alcohol content (BAC) level is .08 or higher. The BAC test is generally conclusive evidence. The police officer doesn’t have to show your driving was impaired. You can be charged with Driving While Intoxicated (DWI) if your BAC is .07 or higher or if there is other evidence that your driving was impaired.
Negative BAC test results can affect your freedom and your driving privileges. You may face enhanced penalties if your BAC test result is .15 or higher. You could be charged with a DUI and could lose your driving privileges if you are a commercial driver and your BAC was .04 or higher, or if you are younger than 21 and your BAC test result was .02 or higher.
Can Maryland police officers use a breathalyzer test?
The police in Maryland must comply with certain conditions before they can ask any driver to submit to a breath test. Law enforcement:
- Must have grounds to believe you were driving while intoxicated. These grounds include observing you speeding, driving through a red light or stop sign, swerving in and out of traffic, or any other behavior that suggests you are driving while impaired. The police can’t stop you because of your race, age, or the type of car you drive. They have to have reasonable grounds to believe you were driving while under the influence of alcohol or while impaired by alcohol.
- Must ask you to submit to a field sobriety test first. If you fail the test, police can ask you to submit to a breath test. Otherwise, unless there are other reasons to believe you drove while intoxicated, such as being involved in an accident and having the smell of alcohol on your breath, they cannot ask you to submit to a breath test.
Drivers in Maryland do give their implied consent to submit to a breath test if the police have reasonable grounds to ask them to take the test. You do not have to take the breath test. However, your refusal to submit to the breath test can be introduced into evidence at your hearing or trial.
How do breathalyzer tests work?
The body absorbs alcohol through the lining of the stomach. According to Medical News Today, “As blood passes through the lungs, some alcohol evaporates and moves into the lungs…By using a partition ratio, it is possible to determine the BAC almost instantly from the air a person exhales rather than requiring a blood sample.”
While the police may use preliminary alcohol screening (PAS) breath tests at the site of the arrest, the breath test machines that are generally used in DUI cases are evidentiary breath tests (EBTs) which are used at the police station or jail. The techniques that breathalyzers used to test your BAC include:
- Electrochemical fuel cell breathalyzers
- Infrared optical sensor breathalyzers
- Semiconductor breathalyzers
How do you fight to exclude or challenge the results of a breathalyzer test?
Normally, our DUI/DWI defense attorneys will file a motion to suppress the admissibility of a breathalyzer test before your trial because the test result, as we discussed, is so critical to the prosecution’s case. We may also challenge the result of the test at a jury trial.
Some of the ways that we contest the admissibility or reliability of a breath test include:
- Illegal search. We challenge that the police had probable cause to believe you drove while under the influence of alcohol or while your driving was impaired by alcohol.
- Improper administration. We may assert that the breathalyzer test was not administered properly. The police officer who gives you the test must be properly trained on how to administer the test and how to read the results of the test. The officer must give you the test within a specific time frame after stopping you and after observing your driving. The officer must instruct you properly on what you need to do to provide an appropriate sample and watch you to be sure you follow those instructions.
- The test was not properly calibrated. The breath test device must be calibrated on a regular basis to ensure that the test results are accurate. If the device was not calibrated in a timely manner, the result of your test may be inadmissible.
- Questioning the office who administered. The officer who gave you the breath test must generally be available to testify about the device, why he/she tested you, what instructions you were given, and the results of the test. If the officer is not present, the results may be excluded. If the officer is present, we will question the officer to question whether he/she is credible.
- You have an explanation. In some cases, we may argue that there are medical reasons why the result of the test may not be accurate. Remember, we generally don’t need to show that you didn’t have any alcohol in your system. We just need to show that your BAC was below the legal limit.
At Carey Law Office, Joseph Carey has been fighting for criminal defendants for more than 40 years. He’s helped numerous defendants obtain dismissals and acquittals of DUI and DWI charges. We fight to exclude evidence such as breath test results that were obtained illegally. We’re skilled at showing the police officer failed to properly administer the test or calibrate the machines. We may be able to show your high BAC reading was justified. To discuss your defenses, call us or fill out our contact form to schedule a consultation We represent defendants in Bowie, Crofton, Dunkirk, and Owings.
My name is Joe Carey, and I am the founder and principal attorney of the Carey Law Office. I have lived in Maryland my entire life. I grew up in a small town in Prince George’s County and, with the help of my partner in life, Nancy, I raised my family here: three exceptional children (a son and two daughters), and two goofy, spoiled black Labrador Retrievers. Learn More