You’ve been out on the town or on your way home from a friend’s house when you see the blue lights in your rearview mirror. You know that you’ve had three beers–or was it four? You may be impaired or intoxicated. Your decisions in the next few minutes could impact your future.
Over the past few decades, considerable advocacy has been leveraged against drinking and driving. Moreover, police are aggressive, setting up sobriety checkpoints and taking additional measures to take drunk drivers off the roads.
While we support and understand the public benefit of maintaining safety on the highways, there are significant personal consequences from a DUI traffic stop. Therefore, we aim to assist our clients in an informative, nonjudgmental way to minimize the harmful effects that can ensure once a driver has made that mistake.
The scope of this article deals with the traffic stop and does not address issues concerning what to do after you have been arrested for a DUI or DWI offense.
Read our article, DUI/DWI – Will I Lose My Driver’s License?
The Preliminary Breath Test
Under Maryland’s Implied Consent law, when an officer lawfully stops a driver and has reasonable grounds to believe the person has been driving under the influence of alcohol or is impaired by alcohol or other drugs, they may request the driver take a preliminary breath test (PBT). This test is administered by the officer using a device approved by the State Toxicologist.
The officer can use the preliminary breath test results as a guide to decide whether to arrest the driver. The results may not be used in any court action. The refusal to take a preliminary breath test does not affect the driver’s legal rights and has no bearing on the driver’s obligation to take a subsequent chemical test.
Drivers should generally decline to submit to a PBT. This is because agreeing to take a PBT generally provides the officer with additional probable cause to support an arrest.
Should I submit to a Chemical Test for Intoxication?
If the officer suspects a driver has driven or attempted to drive a vehicle on a highway or private property used by the public, and that driver is detained on suspicion of driving or trying to drive while under the influence of alcohol or while impaired by drugs or alcohol, the officer may request that they be tested for intoxication.
There is no requirement to consent to the test unless the driver has been involved in an accident resulting in the death or life-threatening injury to another individual.
Refusing to take a breath test may be a prudent strategy depending on the circumstances and your level of intoxication, but generally is not likely to help your cause. In some instances, where the officer has no other evidence of impairment, however, refusing to take a test for intoxication will benefit your cause.
There are two problems here:
- The driver often does not know whether the officer has evidence of impairment.
- Refusal to take the test will result in the suspension of your license, even if it saves you from a potential DUI.
One smart strategy, where a driver has consumed alcohol and is potentially impaired, is not to converse with the officer. Instead, when the officer approaches the vehicle, the driver opens the window slightly to hand the officer their license. An even better strategy is simply holding the license up so the officer can see the license through a closed window.
Refusing to open your window makes it harder for the police officer to establish that they believed you were driving or attempting to drive while intoxicated. Some people will write a note that they do not wish to open their window and ask that the officer place the citation under the windshield wiper. They will place the note and their license/registration in a bag so they are visible and in the window for the officer to see.
If you are stopped, an officer usually starts a conversation upon approaching your car window. You are not obligated to speak to the officer. However, by rolling down your window and talking to the officer, you are potentially providing evidence of intoxication that the officer would not otherwise be able to obtain.
In almost every DUI case, the officer reports that they smelled an alcoholic beverage on the person’s breath, that the eyes were glassy and bloodshot, and that the driver slurred their speech. By taking the steps indicated in this article, you can prevent the officer from obtaining any of this evidence in your case.
If you are stopped, and there is no chance you are impaired or intoxicated, and no illegal substances are in your vehicle, we do not recommend taking these steps as you will raise the officer’s level of suspicion. It’s likely that the officer will look for additional reasons to prolong the stop and have you exit the vehicle.
In addition to holding up your license and registration, a prudent strategy is to make a note indicating that you wish to refrain from speaking to the officer and to talk with your attorney immediately.
You may want to make a sign with the following information:
- I refuse to make a statement or answer any questions.
- I wish to speak with my attorney immediately.
- I do not consent to be questioned without my attorney present.
- I will speak with you once my attorney is present.
- If I am taken into custody, I will not answer any questions.
- I decline to participate in any field sobriety tests.
- I refuse to consent to any search of my car or my person.
- If I am not under arrest, I wish to leave right now.
- If I am under arrest, please advise me so at this time.
- I wish to speak with my attorney before giving any breath or blood sample.
Consequences of Refusal or Failure to Test
If the person consents to the test and fails it, they can face a license suspension. Refusal to take the test can also result in a license suspension of 270 days. Taking the test and failing it, however, can result in a suspension of 45-90 days. The time periods stated are for first-time offenders only. If you have any prior offenses, your license could be suspended beyond these periods.
For a nonresident driver, Maryland can suspend the person’s privilege to drive in Maryland, and their home state may take additional action to suspend their driver’s license.
Refusing a breath test does not guarantee you will not be convicted of driving while impaired or under the influence. The state may argue in a criminal case that you refused the test because you knew that you were intoxicated.
For urgent criminal matters, 24/7 free consultations are available by calling 240-561-1172.
Roadside Field Sobriety Tests
In addition to the PBT, the officer may request that you participate in one or more roadside field sobriety tests. You are not obligated to participate in these tests, and we recommend that you do not. There is generally no benefit to doing the roadside sobriety tests, and by agreeing to do the tests, you help the state build its case against you. The tests are designed to give the police probable cause to arrest you.
If you refuse to participate, you will likely be arrested, but you will minimize the evidence the state can use against you in court. The chance you will convince an officer that you are not impaired by successfully performing the tests is minimal. You should politely tell the officer that you do not wish to participate.
There are three tests that are commonly used in Maryland:
- The Horizontal Gaze Nystagmus Test. In this test, the officer holds an object, such as a pen, and tells the driver to follow the object as he moves it from side to side. The officer is looking for the onset of nystagmus, which is a twitching of the eyeball before a 45-degree angle and watching for the ability of the driver to follow the stimulus back and forth. Nystagmus, however, is a common condition and may indicate a medical condition other than impairment by alcohol.
- The Walk and Turn. In this test, the officer directs the driver to take nine steps along a line, heel-to-toe, turn around and take nine steps back. The officer observes your balance, whether you stop or step off the line during the test.
- The One Leg Stand. The driver is told to stand still, with the arms at their side, raise one leg six inches off the ground, and count out loud until the officer directs you to stop. The officer is checking to see if you can keep your balance, if you raise your arms, hop, sway, or put your foot down.
If You are Arrested
Call your attorney immediately. You may ask the officer if you are free to go. If the answer is no, then you are under arrest and have the right to call an attorney. Under no circumstance should you volunteer to speak to the officer about anything. Nothing you say will likely help your case if you are already under arrest.
If the officer arrests a person after finding probable cause, the officer will confiscate the driver’s license and issue an Order of Suspension with a temporary license valid for 45 days.
Although you obtain a temporary license, it is illegal to drive within twelve hours after an arrest for driving while impaired or driving while under the influence of alcohol.
The Order of Suspension will contain a hearing request form. It is crucial that you meet with your attorney during this time frame to determine whether you want to request a hearing. If you and your attorney determine that you should request an MVA hearing, you must complete the hearing request form and send it in with the required fee within ten (10) days of the arrest to ensure that your matter will be heard before the suspension of your license. Per the instructions, you must include a check for $150 payable to the Maryland State Treasurer. A hearing allows you to challenge the suspension or request a modified license be issued in lieu of suspension.
Contact an attorney immediately. The sooner you contact an attorney, the more time the attorney has to investigate and prepare your case for trial.
Do not try to make your case with the officer. Generally, pleading your case with an officer who is about to arrest you will not be successful and may result in you providing evidence that the state can use in court. Instead, cooperate with the officer, be as pleasant as possible without volunteering any information, and wait until you are released or can reach your lawyer.
Write a summary concerning everything that you can remember about the traffic stop. Write this before reading the Order of Suspension, which will have the officer’s account of what happened. This summary will be helpful when you go to court or appear for a hearing on your license suspension.
Rely on your attorney for advice on your specific arrest. They may recommend that you get into an alcohol education program before going to court. You want to start building a case for mitigation as soon as possible if you plead guilty or are found guilty in court. Attorney direction will help you get a better sentence and may even allow you to stay out of jail.