Should I refuse a breath test? P. 2

On Behalf of | Feb 26, 2015 | Breath Test Refusal

In our previous post, we brought up the issue of whether it is ever wise to refuse a breath test during a DUI investigation. As we pointed out, refusing a breath test does not necessarily guarantee that the individual under investigation will avoid a DUI charge, and he or she will have to deal with an automatic license suspension for refusing such testing.

All of this is to say that motorists should be cautious about refusing a breath test. This is all the more true given that refusal to submit to a breath test can be used as evidence in a criminal case. It is also worth pointing out that in cases involving serious injury or death, a motorist suspected of being under the influence of alcohol may be forced to submit to a test after a warrant is obtained. In these cases, then, refusal may simply delay when the test is performed.  

It is important to clarify, though, that there is a difference between preliminary breath testing and the breath tests which are performed after an arrest has taken place. Preliminary breath testing is performed prior to arrest in order to gather evidence in support of probable cause.

Under Maryland law, the results of a preliminary breath test are not admissible in court, nor is the refusal to submit to such a test. In other words, refusal of a preliminary breath test may be of little consequence in and of itself, but officers will still be able to make an arrest if they gather enough other evidence.

In our next post, we’ll sum up this discussion of breath testing and offer some final comments on the topic.


Justia US Law, “2010 Maryland Code; Transportation; Title 16 – Vehicle Laws-Driver’s Licenses; Subtitle 2 – Cancellation, Refusal, Suspension, or Revocation; Section 16-205.2 – Preliminary breath test.,” Accessed Feb. 26, 2015.

National Highway Traffic Safety Administration, “Breath Test Refusals in DWI Enforcement: An Interim Report,” Accessed Feb. 26, 2015.

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