Many Maryland DUI clients tell me that they took the DUI preliminary breath test on the side of the road, but refused the breath test at the police station. They are confused when I explain to them that their case is still considered a refusal by the MVA, because the breath test on the side of the road is not the official breathalyzer for purposes of court and the MVA.
What is the DUI preliminary breath test?
The road side breath test is called a DUI preliminary breath test (PBT). It is a hand-held and portable breathalyzer administered on the scene that gives a police officer a rough BAC estimate.
PBTs are not as accurate or reliable as the breathalyzers used at the police stations by certified operators, because they lack certain procedures and safeguards. While a PBT is allowed to be used by police officer as a guide in deciding whether a DUI arrest is appropriate, the results of a PBT are inadmissible in court by statute.
Maryland Transportation Article, Section 16-205.2 provides:
(a) A police officer who has reasonable grounds to believe that an individual is or has been driving or attempting to drive a motor vehicle while under the influence of alcohol or while impaired by alcohol may, without making an arrest and prior to the issuance of a citation, request the individual to submit to a preliminary breath test to be administered by the officer using a device approved by the State Toxicologist.
(b) The police officer requesting the preliminary breath test shall advise the person to be tested that neither a refusal to take the test nor the taking of the test shall prevent or require a subsequent chemical test pursuant to Section 16-205.1 of this subtitle.
(c) The results of the preliminary breath test shall be used as a guide for the police officer in deciding whether an arrest should be made and may not be used as evidence by the State in any court action. The results of the preliminary breath test may be used as evidence by a defendant in a court action. The taking of or refusal to submit to a preliminary breath test is not admissible in evidence in any court action. Any evidence pertaining to a preliminary breath test may not be used in a civil action.
(d) Refusal to submit to a preliminary breath test shall not constitute a violation of Section 16-205.1 of this subtitle and the taking of a preliminary breath test shall not relieve the individual of the obligation to take the test required under Section 16-205.1 of this subtitle if requested to do so by the police officer.
Three things to know about the DUI preliminary breath test
There are couple of things to take away from the above Maryland statute regarding the preliminary breath test.
First, the PBT is a tool used by police officers to help them assess whether or not to place you under arrest for DUI. In reality, if you have made it to the PBT stage of a DUI case, then I find that police officers are going to arrest you for DUI regardless of the results of the PBT.
Second, submitting to or refusing a PBT has no effect on whether your obligation to submit to or refuse the official breathalyzer at the police barracks. The PBT is not the official breathalzyer, taking the PBT does count as your breathalzyer results for the purposes of the MVA.
Finally, the PBT results are not admissible as evidence by the State in court, but are admissible as evidence by you, the Defendant. Sometimes, I battle with prosecutors that try to offer the PBT results are evidence in court. This is an automatic objection, that must be ruled on in favor of the defense by the court.
Contact Carroll County DUI Attorney Ross W. Albers to schedule a free consultation
If you have been arrested for driving under the influence or driving while impaired in Maryland and were administered a preliminary breath test, then contact the Law Office of Ross W. Albers to schedule a free consultation.
Do not confuse the road side PBT with the breathalyzer administered at the police station. Refusing to take the PBT has no affect on the MVA, but refusing to take the breathalyzer may result in a 120 day suspension of your driving privilege in Maryland.
Maryland DUI Attorney Ross W. Albers is a former Baltimore City DUI prosecutor. He is a member of the National College for DUI Defense and was recognized by Maryland Super Lawyers as a Rising Star in Criminal Defense: DUI.