To Blow or Not To Blow

One of the most common questions I get as a DUI lawyer is whether someone should take the breathalyzer test when arrested for drunk driving. In this post I will discuss the pros and cons of this decision and provide what general advice I can. Changes in the law, however, make this decision much more complicated and really require that you contact an attorney immediately when you are arrested and before you actually choose whether to blow or not to blow.

You have the right to counsel at this critical juncture and you should take advantage of it. You can call our office at 410-541-6DUI (384) 24 hours a day and speak directly with me. Keep this information handy in case you need it.


Maryland is an "implied consent" state. This means that by having a driver's license you are consenting to breathalyzer testing whenever an officer has reasonable grounds to believe you are operating a motor vehicle under the influence of alcohol. While you have a Fifth Amendment right to refuse the breathalyzer test, you will receive a more severe administrative sanction if you refuse the test. In addition, the prosecutor may seek a more severe criminal sanction (TR 27-101) for refusing the breathalyzer test.

If you consent to the breathalyzer test and have a blood alcohol reading between .08 and .15 your licensed will be suspended for 45 days (on a first offense). This suspension may be modified to allow you to drive for limited purposes such as driving to work, school or alcohol treatment. If you refuse the test or if you take the test and have a reading of .15 or more your license will be suspended for 120 days and may only be modified if you agree to ignition interlock in your car for at least one year (again for a first offense). (Please read our post about administrative hearings.)

Now, before the law was changed to treat those whose blood alcohol level of .15 or higher the same as those who refused the test, I advised first time offenders to take the test as the administrative sanction for refusal was likely to be worse than the likely sentence in a criminal case. Unfortunately, now if you take the test and blow .15 or over you lose both on the criminal side and the administrative side.

The advantage of refusing the test is that the State's Attorney will have one less piece of evidence to convict you in court. As we discussed a prior post, the purpose of an officer's asking you if you have been drinking, giving you field side sobriety test, etc. is to build the case against you. The Fifth Amendment gives you the right to refuse to incriminate yourself whether it is to refuse to answer the question if you have been drinking and to refuse any tests that will be used against you in a court of law. The breathalyzer test result is the most critical piece of evidence used in court and without it the job of convicting you on the most serious alcohol related charges is much more difficult.

The bottom line is this. For most first time offenders, the administrative sanction of refusing to take the breathalyzer is still worse than the likely criminal sanction unless of course your BAC is .15 or higher and then it is the worst of both worlds. There is no way to know what your blood alcohol level is short of taking some test and if you have been drinking your judgment in figuring how drunk you are is impaired.
That is why it is so important to contact an attorney for sober, thoughtful analysis and advice. If the police refuse to allow you to contact an attorney that may be used to prevent the MVA from taking action against you.

Program our number into your phone 410-541-6384 and call if you ever find yourself asking whether To Blow or Not To Blow.