When a police officer in Maryland asks you to take a breathalyzer test after a traffic stop, you face a high-pressure decision with significant consequences either way. Submitting to the test may provide the prosecution with key evidence against you, but refusing the test triggers its own set of penalties under Maryland’s implied consent law. Understanding the legal implications of both choices is essential for anyone facing this situation. At SoMD Criminal Defense, we represent clients throughout Charles County, Calvert County, St. Mary’s County, and Prince George’s County who are facing DUI charges and breathalyzer-related issues.
Maryland’s Implied Consent Law
Under Maryland Transportation Article § 16-205.1, every person who drives on Maryland roads is deemed to have given implied consent to submit to a chemical test for alcohol or drugs if a law enforcement officer has reasonable grounds to believe the driver is operating a vehicle while impaired or under the influence. This means that by choosing to drive in Maryland, you have already legally agreed to be tested — and refusing that test carries penalties.
It is important to distinguish between two types of breath tests. The preliminary breath test (PBT) is a roadside screening test administered during a traffic stop. The PBT is generally voluntary, and its results are not admissible in court as evidence of your BAC. The formal evidentiary breath test is administered at the police station after arrest using a calibrated instrument (typically the Intoxilyzer). This is the test covered by Maryland’s implied consent law, and the results are admissible as evidence in your DUI case.
Consequences of Refusing the Breathalyzer
Refusing the formal breath test at the station triggers administrative penalties imposed by the Maryland Motor Vehicle Administration, separate from any criminal penalties. For a first refusal, your driver’s license will be suspended for 270 days. For a second or subsequent refusal, the suspension period increases to one year. These suspensions are administrative actions handled by the MVA, not criminal penalties, and they take effect regardless of whether you are ultimately convicted of DUI.
The suspension period for a refusal is actually longer than the suspension for a failed test. A first-offense failed test (BAC of 0.08 or higher) results in a 180-day suspension, while a first-offense refusal results in a 270-day suspension — 90 days longer. This is by design: the legislature wanted to discourage refusals by making the administrative consequences more severe than the consequences of a failed test.
In addition to the license suspension, your refusal can be used as evidence against you at trial. The prosecution can argue that you refused the test because you knew your BAC would be above the legal limit. While this inference is not conclusive, it allows the jury to draw a negative conclusion from your refusal. This means that refusing the test does not prevent the state from pursuing DUI charges — it simply changes the evidence available to both sides.
The MVA Administrative Hearing
After a breathalyzer refusal, you have the right to request an administrative hearing with the Office of Administrative Hearings within 30 days. This hearing is separate from your criminal case and focuses on whether the administrative license suspension is justified. At the hearing, an administrative law judge will consider whether the officer had reasonable grounds to request the test, whether you were properly informed of the consequences of refusal, and whether you actually refused the test.
Requesting this hearing is critical. If you do not request a hearing within 30 days, the suspension takes effect automatically. At the hearing, your attorney can challenge the officer’s basis for the stop, the officer’s reasonable grounds for requesting the test, whether the implied consent advisement was properly given, and whether your conduct actually constituted a refusal. Success at the administrative hearing can result in the suspension being rescinded, which preserves your driving privileges during the pendency of your criminal case.
Can You Still Be Convicted of DUI After Refusing?
Absolutely. The prosecution does not need a breath test result to secure a DUI conviction. Officers’ observations of impairment — including bloodshot eyes, slurred speech, the odor of alcohol, unsteady gait, poor performance on field sobriety tests, erratic driving patterns, and statements you made during the stop — can all be used to establish that you were impaired while driving. In our experience handling DUI cases in the courtrooms of La Plata, Prince Frederick, Leonardtown, and Upper Marlboro, prosecutors regularly obtain DUI convictions without breath test evidence. The prosecution builds its case around the totality of the officer’s observations and any other available evidence, such as dashboard camera footage or witness testimony.
Should You Refuse the Breathalyzer?
This is one of the most common questions we receive, and there is no universal right answer. The decision depends on the specific circumstances of your situation. If you have had little or nothing to drink and are confident your BAC is below 0.08, submitting to the test may produce results that help your defense. If you have been drinking and believe your BAC may be significantly above the legal limit, the refusal may prevent the prosecution from having a specific BAC number to present to the jury, although you will face the longer administrative suspension and the inference of consciousness of guilt.
If you have prior DUI convictions, the calculus changes significantly. Repeat DUI offenders face enhanced criminal penalties, and a high BAC reading on a second or third offense can trigger mandatory minimum jail time. In these situations, some defendants decide that the administrative consequences of a refusal are preferable to providing the prosecution with a BAC reading that triggers mandatory minimums.
Regardless of what you decide in the moment, the most important step you can take is to contact an experienced criminal defense attorney as soon as possible after the arrest. Both a refusal and a failed test present defense opportunities, and the right attorney can develop a strategy that accounts for the specific evidence in your case.
Challenging Breathalyzer Results in Court
A breathalyzer reading is not automatically reliable. For results to be admissible in Maryland, the device must be approved and properly maintained, the operator must be certified, and required testing procedures—including the observation period before the test—must be followed.
Common ways to challenge breath test evidence include questioning the calibration and maintenance records of the machine, the operator’s certification, whether the observation period was honored, and whether medical conditions or mouth alcohol may have skewed the reading. If the breath test is suppressed, the prosecution loses a central piece of evidence, which can lead to reduced charges or dismissal—though the state may still pursue a case using other evidence of impairment.
Contact a Southern Maryland DUI Defense Attorney
If you refused a breathalyzer test in Maryland, time is of the essence. You have only 30 days to request an administrative hearing to challenge the license suspension. At SoMD Criminal Defense, Jeremy Widder and Kathryn Batey handle both the administrative and criminal aspects of DUI cases. We serve clients in Waldorf, La Plata, Prince Frederick, Leonardtown, Upper Marlboro, and throughout Southern Maryland.
Call (301) 818-0389 or contact us online for a free consultation. This article provides general information about breathalyzer refusals in Maryland and should not be relied upon as legal advice for your specific situation.
Frequently Asked Questions
Is refusing a breathalyzer a crime in Maryland?
Refusing a breathalyzer is not a separate criminal offense in Maryland. However, it triggers administrative penalties including a longer license suspension than a failed test. Your refusal can also be used as evidence against you in the DUI criminal case, with the prosecution arguing that you refused because you knew you were over the legal limit.
Can police force me to take a blood test if I refuse the breathalyzer?
Under the Supreme Court’s decision in Birchfield v. North Dakota, police generally cannot conduct a blood test without a warrant. However, in cases involving serious accidents with injuries or fatalities, officers may obtain a warrant for a blood draw. If a warrant is issued, you are legally required to submit to the blood test, and refusal could result in additional consequences.
Will I lose my license if I refuse the breathalyzer?
You face a 270-day license suspension for a first refusal and a one-year suspension for subsequent refusals. However, you have the right to request an administrative hearing within 30 days to challenge the suspension. If successful, the suspension can be rescinded. You may also be eligible for participation in the ignition interlock program, which can allow you to drive with restrictions during the suspension period.
