What Is the Difference Between the Preliminary Breath Test and the Evidentiary Test?
Maryland has two different types of breath tests. The preliminary breath test is the handheld device an officer may offer at the roadside. Refusal of the preliminary breath test does not violate the implied-consent statute and does not trigger an administrative license suspension. The result of a preliminary breath test is not admissible in the criminal case. The evidentiary breath test is the test administered after arrest, usually at the station, after the officer reads the DR-15 Advice of Rights form. Refusal of the evidentiary test is what triggers the administrative consequences under Transportation Article § 16-205.1.
What Are the Administrative Consequences of Refusing the Evidentiary Test?
A first refusal of the evidentiary breath test results in a 270-day administrative license suspension imposed by the Motor Vehicle Administration. A subsequent refusal results in a two-year administrative suspension. These suspensions are separate from any criminal case and are imposed whether or not the person is convicted of DUI or DWI. By comparison, a first test result of 0.08 or higher generally results in a 180-day administrative suspension. Refusal therefore carries a longer license sanction than most failed tests. The officer typically takes the Maryland license and issues a temporary license that is valid for 45 days.
How Does the Hearing Request Process Work?
A person who receives an Order of Suspension after a refusal may request an administrative hearing with the Motor Vehicle Administration. The request must be made within 10 days of the stop to keep the suspension from taking effect before the hearing, subject to the temporary-license rules. At the hearing, the issues are limited. The administrative law judge determines whether the officer had reasonable grounds to believe the person was driving while impaired, whether the officer requested the test, and whether the person refused. A timely request can preserve driving privileges pending the hearing.
Are There Criminal Consequences for Refusal?
Refusal itself is not a separate criminal charge. However, if a person is convicted of DUI or DWI and the court finds beyond a reasonable doubt that the person knowingly refused the evidentiary test, the court may impose an additional penalty. The maximum additional penalty is two months in jail and a $500 fine. This enhanced penalty is in addition to the penalties for the underlying DUI or DWI conviction. The administrative suspension and any criminal sentence are independent of each other.
Where Are These Cases Handled in Baltimore County?
The administrative hearing is held by the Office of Administrative Hearings and is separate from the criminal case. The criminal DUI or DWI case begins in District Court in Towson, Essex, or Catonsville. Because the maximum penalty for a first-offense DUI exceeds 90 days, the defendant may pray a jury trial and move the case to the Circuit Court for Baltimore County, which sits only in Towson. The administrative and criminal proceedings run on separate tracks.
What to Do If You Refused the Breath Test
If you refused the evidentiary breath test in Baltimore County, the 10-day window to request an MVA hearing is critical. Shepard Law represents clients in both the administrative and criminal aspects of DUI and DWI cases in Towson, Essex, Catonsville, and the Circuit Court in Towson. Call (410) 648-4008 to schedule a free, confidential consultation. Criminal defense attorney Stephen P. Shepard can review the DR-15 form and explain the options for the hearing and the criminal case.
Yes. Refusal of the preliminary breath test does not violate Maryland’s implied-consent statute and does not trigger an administrative license suspension. The preliminary test is different from the evidentiary test administered after arrest.
A second refusal of the evidentiary breath test results in a two-year administrative suspension. This is longer than the 270-day suspension for a first refusal.
No. The Motor Vehicle Administration imposes the suspension for refusal regardless of the outcome of the criminal case. The administrative and criminal proceedings are independent.
The request must be made within 10 days of the stop to keep the suspension from taking effect before the hearing, subject to the temporary-license rules. A timely request can preserve driving privileges pending the hearing.
Yes. If a person is convicted of DUI or DWI and the court finds beyond a reasonable doubt that the person knowingly refused the evidentiary test, the court may impose an additional maximum penalty of two months in jail and a $500 fine.
The criminal DUI or DWI case begins in District Court in Towson, Essex, or Catonsville. Because the maximum penalty exceeds 90 days, the defendant may pray a jury trial and move the case to the Circuit Court for Baltimore County in Towson.
