Maryland’s breath test refusal rate was 29.1 percent for 2001.
1) The System
Maryland has a two-tier system for impaired driving offenses: driving under the influence (BAC ≥.08; called “A” offenses) and driving while impaired (BAC <.08; called “B” offenses).
Maryland allows Probation Before Judgment (PBJ), under which offenders may be given one year of probation with alcohol education; upon successful completion the driver’s record is cleared so there is no record of a prior alcohol offense.
Cases are prosecuted and adjudicated at the county level. Practices vary substantially by county and sometimes by individual judges and prosecutors within a county.
Maryland has administrative per se with license suspension for BAC ≥.08. Offenders have the right to a hearing before an Administrative Law Judge (ALJ). The ALJ can dismiss the suspension or can modify the suspension to allow driving to work, school, alcohol treatment, or other purposes.
Test refusal results in administrative license suspension for 120 days for first-time offenders and 1 year for repeat offenders, which again can be appealed to an ALJ. Driving to work or other purposes may be allowed under the condition that the driver uses an alcohol interlock. Test refusal suspensions are in addition to any criminal penalties that may be applied.
Penalties increase for repeat offenders (defined as a second or subsequent offense within 5 years) and for drivers transporting a minor. Penalties are not increased for drivers with high BAC levels -- Maryland does not have a high-BAC aggravated DWI law.
Tables 7 and 8 summarize the administrative and criminal penalties. The only “mandatory” minimum penalty is 5 days in jail or 30 days community service for a second “A” offense within 5 years.
Both criminal and administrative consequences of a DWI arrest vary considerably by jurisdiction. It is believed that drivers generally receive more severe sanctions in rural counties.
First offenders almost always have their criminal charges pled to “B” regardless of whether or not they took a BAC test or what their BAC level was. They then almost always receive PBJ. This means they will have no DWI prior record if they complete their probation satisfactorily, only a record of the PBJ. Administratively, first time offenders receive no suspensions with a BAC < .08 (unless they have 4 or more points on their driving records already); a 45-day suspension with a work modification with a BAC ≥ .08. If a first-time offender refuses the breath test, they receive either a 120-day suspension or a 1-year interlock requirement.
Since PBJs are not recorded as DWI priors, a second offense within 5 years of a PBJ is thus considered a first DWI offense. In theory, drivers cannot receive a second PBJ, but some do. Usually, though, these second offenses are pled down to a “B” and receive a fine and probation. Only with a third offense are jail or community service typically imposed. Administratively, the second offense will in fact be identified as a second offense. Drivers over .08 will receive a 90-day suspension, perhaps with a work permit modification and perhaps not. Drivers who refuse will receive a 1-year suspension, perhaps with the option of driving with an interlock, perhaps not.
The administrative portion of the system appears to work well, with fairly certain penalties. The criminal portion is driven by the PBJ option. Some believe that PBJ is applied far too frequently. PBJ’s most contentious feature is that the offender has no record of this “first” offense. This feature of PBJ would be far more acceptable to its critics if it was permanently recorded as a prior alcohol-related offense, so that a subsequent arrest could be charged as a second offense.
3) How BAC Tests are Requested and Administered
Drivers arrested on an impaired driving charge are taken to a police station or equivalent facility where they are asked to provide a breath test. A breath test is used unless the driver is injured and unable to provide a breath test or unless breath test equipment is not available. The driver must take the test within two hours of the request. A driver who fails to take the test within the two-hour period is considered to have refused. A driver who fails to cooperate with testing procedures, such as by not providing a satisfactory breath sample, also is considered to have refused. A driver has the right to consult with an attorney before deciding whether or not to take the test.
Maryland has a form DR-15, Advice of Rights, located in Appendix D, which attempts to explain the implied consent law and the consequences of taking or refusing the test. Arresting officers must read or explain the form to arrested drivers when they request the test, and both the officer and the driver must sign the form. The form is a full page of about 9-point type and is difficult to understand; it is detested by almost everyone. However, if officers attempt to explain the form and the possible consequences of taking or refusing the test in their own words, they can be attacked in court, so many officers just read the form.
4) Advantages of Taking or Not Taking a Breath Test
From their vantage point, first-time offenders benefit from taking the breath test because of the relative outcomes. Even if they fail the test, they almost always will receive a PBJ with at most a 45-day suspension and a work permit compared to the 120-day suspension they would receive if they refuse. In addition, their insurance companies will find out about refusals and will raise insurance rates about $2,000 a year for three years. PBJs have no effect on insurance rates because insurance companies do not learn about them. Many defense attorneys advise first offenders to take the test.
Second offenders benefit from refusing the test unless they are sure they are under .08. If they refuse, they typically will be pled to a B (under .08) and charged as though they were a first offender. They cannot (in theory) receive a PBJ, but they will receive relatively light B-level penalties. If they take and fail the test, they may face the more severe A-level penalties.
5) Who Takes and Who Refuses a BAC Test
It is believed that many first-time offenders are scared, confused, not thinking straight (they have been drinking, perhaps quite a lot), perhaps intimidated by law enforcement, and do not clearly understand the consequences of refusing or taking the test. The DR-15 form doesn’t help. Most first-time offenders do not have an attorney they can call in the two-hour window after they’ve been asked for a test. As a result, some first-offenders refuse the test out of confusion or general suspicion of authority. Repeat offenders have more knowledge of the system, the possible consequences of taking or refusing the test, and the likelihood that the penalties will in fact be applied. Repeat offenders are more likely to get an attorney’s advice. Repeat offenders also face more severe criminal penalties and may have learned that license suspensions for refusal are difficult to enforce. So many repeat offenders refuse the test.
Attorneys’ advice varies. Some will advise first offenders to take the test and repeat offenders to refuse. Some will advise everyone to refuse on the grounds that drivers should not cooperate in any way with the arresting officer. Others may advise everyone to take the test and then attack the testing process (chain of custody, breath test instrument calibration and function, etc.).
6) Benefits of BAC Test Results
BAC test results assist in obtaining DWI convictions and may help to identify problem drinkers. Many, perhaps most, prosecutors will plea a DWI down to a “B” offense if there is no BAC result: conviction is far easier with a high BAC test result in evidence. High BACs also allow judges to include alcohol problem screening and treatment as part of the driver’s sentence. Some judges assume that repeat offenders are likely to have an alcohol problem and should be screened, but first offenders with alcohol problems likely are not identified without a BAC test and a high BAC reading.
7) Potential Strategies to Reduce BAC Test Refusals in Maryland