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Your Rights to an Attorney: Breathalyzer Tests

Whether or not you will be allowed to consult with an attorney before you take a breathalyzer test is a question which has significance on two fronts. Drivers charged with Driving Under the Influence (DUI) face not only criminal sanctions, but also the possibility of a license suspension. Maryland’s implied consent statutes and related legislation govern the procedural process that is followed in these circumstances.

There are competing goals—law enforcement personnel are concerned with preserving evidence, which meets evidentiary standards and admissibility requirements, while the drivers (and their lawyers) are concerned with making sure that the decision to do the breathalyzer is voluntary and fully informed. Interpretations of the Maryland Declaration of Rights, and the laws by the Court of Appeals and Court of Special Appeals have shed some light on the question.  

With regard to the admissibility of a breathalyzer test in a criminal trial, the courts have said that drivers have a right to consult with an attorney prior to taking the breathalyzer so long as the consultation does not “substantially interfere with the timely and efficacious administration of the testing process.” Sites, 300 Md. 702, 717-718 (1984). So, for a criminal trial, if an officer refuses to allow the driver to talk to a lawyer prior to administering the test there may be a chance to keep the results of the test out.  On the other hand, for an Office of Administrative Hearings (OAH) proceeding where the MVA is seeking to suspend the driver’s license, the same protections don’t apply. In May of this year, the Court of Appeals decided MVA v April Marie Deering. The court determined that even if a driver is not permitted to seek the representation of counsel before submitting to the test, the MVA can suspend the license of the driver or take other administrative actions.

The result is that you have an absolute right to request an opportunity to consult an attorney, but what happens if you are denied that chance depends very much on the forum, and the specific facts about your case. If you have questions about whether or not to take a test, or have been charged with a DUI, or have questions about license suspension, please call for an individualized, case-specific discussion of your rights and options.

Contact Arthur S. Alperstein, Christopher P. Wheatcroft, Robert H. Wolf, Warren S. Alperstein, Alexander C. Steeves or Andrew I. Alperstein.