Maryland DUI Defense Frequently Asked Questions














1. I was driving fine, how could the officer pull me over?

The police officer needs only a articulable reasonable suspicion to believe you committed, were committing, or were about to commit, a crime. Depending upon the facts, an argument could be made that the stop was illegal. If the judge finds the police officer did not have a basis to make the stop, that may be a defense in court.

The basis for the stop is not a defense at the administrative hearing.

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2. The officer asked how much I had to drink, do I have to answer?

You do not have to answer any incriminating question. Politely ask to speak with an attorney before answering any questions.

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3. When can I ask to speak to an atorrney?

You can ask to speak to an attorney at any time so long as it does not unreasonably delay the testing process.

The test must be taken within two hours of arrest.

Note that if you were arrested on federal property in Maryland it is under the jurisdiction of the National Park Service and patrolled by the United States Park Police. Under the National Park Service Regulations a refusal is a crime punishable by up to 6 months in jail and a $5000 fine.

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4. Can I refuse to perform the field sobriety tests?

You do not have to perform any field sobriety tests (including any preliminary breath test). However, the officer will normally arrest someone who refuses to take field sobriety tests.

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5. Why did the officer ask me to follow the penlight with my eyes?

This test is known as the horizontal gaze nystagmus (HGN) test.

The police officers is looking the involuntary jerking of the eye, which may, among other causes, be caused by consumption of alcohol.

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6. I did everything the police officer asked, why did he still arrest me?

The police officer is trained to look for certain "clues" during each test. If the officer detects the requiste amount of "clues" you will be arrested. If you performed well on the field tests, this may be a defense at trial. Police officers normally only indicate the errors, and not that the person understood the directions or performed the test as asked, the person only sawyed, or raised their arms.

During the follow the penlight with yours eyes test, the police officer is looking for an involuntary jerking of the eyes.

During the one leg stand test, the police officer is looking for putting the foot down before 30-1000, hopping, swaying, or raising the arms more than six inches.

During the walk and turn test, the police officer is looking to see whether the person was unable to stand with one foot in front of the other while being instructed, failed to touch heel to toe on the steps, failed to stay on the line, stopped walking, raised arms more than 6 inches, took the wrong number of steps, or turned improperly.

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7. Should I have refused to take the breath test?

The driver must weigh the consequences of their decision. If you refuse the test, the driver is looking at the suspension of their license for 120 days and the installation of an ignition interlock, but you deny the state crucial evidence.

If this is your first offense, the 120 day suspension and possible ignition interlock is very harsh, so it is probably better to perform the test.

If you have several priors, you may be better off refusing the test.

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8. Can I elect a blood test instead of a breath test?

In Maryland, the driver has no choice as to the type of test to be taken. If the driver is unconscious or incapable of refusing the test, or if the equipment for conducting a breath test is not available, the officer may direct medical personnel to withdraw a blood sample.

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9. I wasn't read my rights, will the breath test be thrown out?

Often, in drunk driving cases, they do not give a 5th Amendment Miranda warning about the right to remain silent and to have the assistance of a lawyer. The only consequence is that any of your answers to questions asked by the police after the arrest will be supressed. It does not affect the breath or blood tests.

More than likely the police officer advised of your right to take or refuse a chemical test for alcohol and the penalties for failing or refusing the breath test.

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10. What does driving under the influence per se mean?

Maryland has multiple offenses that are characterized by the generic term - drunk driving:

  • driving while under the influence of alcohol,
  • driving under the influence of alcohol per se,
  • driving while impaired by alcohol,
  • driving while impaired by drugs, or drugs and alcohol, and
  • driving while impaired by controlled dangerous substances.
Driving under the influence of alcohol per se means that you had a breath test result of .08 or more.

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11. How come the officer took my license?

This is because of Maryland's Implied Consent law. Essentially, when driving on Maryland roads (public or private), you impliedly consent to a test to determine impairment.

Maryland's Implied Consent Law.

Unless your license is already suspended, the officer will confiscate the license (unless it is out of state), issue a 45 day temporary license that allows you to drive prior to the MVA hearing.

Maryland's Temporary License

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12. What are the penalties for drunk driving?

Generally, for a first offense, any punishment may involve community service, ignition interlock devices, AA meetings, MADD victim impact meetings, a tour of the emergency room, a fine, points on your driving record, a license suspension or restriction, attendance at a DUI education course, and supervised probation for one to three years. Depending on the facts of your situation, a short jail sentence may or may not be required.

A subsequent offense, within five years of the prior, will require jail time. The Court also may impose any of the above conditions.

If you are found guilty at Court, and points are imposed, you may have an additional MVA hearing.

As of January 1, 2007, the administrative penalties will double if you have a breath test result of .15 or more.

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13. What is a PBJ?

The Court with holds entering judgment against the person, as long as the the individual meets the conditions of the Court. If the conditions are completed without any violations, the person does not get the conviction, points are not assessed against the person, and the guilty finding does not show on the person's complete driving record.

However, the PBJ will appear on a PBJ driving record, which is only available to the person, his or her lawyer, the Court, the prosecutors, and police.

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14. This is my first offense, will I be offered probation before judgment (PBJ)?

Generally, judges who offer PBJ for DUI offenses want to see first offenders being proactive, as such it is important to be elvaulated, begin AA and DUI Education classes before court.

Just because it is your first offense, does not mean this will be offered to you. An offer of PBJ is at the discretion of the judge and some judges will not offer PBJ for DUIs.

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15. If I take DUI classes before I go to court will I not be admitting guilt?

Whether you have taken DUI classes or attended AA before court is not admissible.

Your attendance at DUI classer and/or AA will only be admitted at sentencing. If you want to be offered a PBJ, you must be able to show the Court that you have been proactive in dealing with the DUI offense.

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16. What are the defenses to drunk driving?

There are several defenses that may be raised depending on the facts. Each step of the arrest and testing has specific legal requirements. Further, the breathalyzer has to be well maintained. A knowledgable attorney will be able to review the facts of your case and provide you with a detail answer as to any defense you may have.

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17. Do I really need a lawyer?

The drunk driving area of the law is very complex. In order to get the best possible result under the particular facts and you need a lawyer familiar with all of the procedures involved in order to be able to get you the best possible outcome.

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18. How do I know a good lawyer from a bad lawyer?

You should meet with a multiple of lawyers, and discuss the following:

  • Do you intend to plead me guilty?
    • You should not plead guilty.
  • Does the fee include the Motor Vehicle Administration (MVA) hearings?
    • It is generally accepted that the fee includes the MVA hearing.
  • Can you guarantee a result?
    • No attorney should guarantee a particular result.
  • Do you offer a payment plan?

An attorney should provide a written retainer agreement outlining the terms and conditions of the lawyer's services. Don't be afraid to turn down a lawyer's offer, it is your right to be comfortable with your choice of an attorney.

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19. What will it cost to get a lawyer?

Generally, for a first DUI offense, non-jury trial I charge $1,000.00. Payment plans are available and credit cards are accepted with an additional fee. The fee may vary depending on the complexity of the case.

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20. Where can I find additional information about drunk driving?

Maryland DUI Information & News

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