Some states refer to it as Driving Under the Influence (DUI), others refer to it as Driving While Intoxicated (DWI), and a small group of states called it Operating Under the Influence (OUI). (We generally refer to it as “DUI” at this site.)

This criminal offense generally includes either driving under the influence of alcohol to the extent it impairs your physical and mental faculties or driving while you have a blood alcohol content of .08 or greater regardless of whether the alcohol has had any effect on you. The offense is also mistakenly known as “drunk driving” although that term has no official meaning and is a misnomer because you don’t have to be drunk (or driving) in order to be arrested and convicted of a DUI.

Simply put the answer is-no. But there will most likely be administrative consequences for turning it down. There are two types of breath tests given, the Preliminary Breath Test and the Police Station Test. 

Preliminary Breath Test

It is easiest to differentiate these two tests by describing them in the sequence they are most likely to appear. The first breath test is usually given on the side of the road, just before you are arrested, and the second one is given after you are arrested and driven to a police station.

Many traffic enforcement police officers have a device in their car that can detect the alcohol levels in your breath. According to Maryland DUI LAW, the legal term for this side-of-the-road test is the “Preliminary Breath Test.” This machine is not legally reliable and is only used as a guide to determine whether you should be arrested. Once arrested, however, an officer will likely take you to a police station for an official breath or blood test.

It is important to remember that a Preliminary Breath Test is NOT mandatory. A police officer will likely not tell you this. The officer might just say they’d like you to take a quick test without giving you any indication of its significance. Remember, refusing this test will have no impact on your driver’s license. And if you take the test or refuse to take the test, the results of your refusal cannot be used by the State in any court action. So do you need to take one of these first DUI/DWI breath tests, if they are offered? Not at all.

The Police Station Breath or Blood Test

The second test which is the one we all think of when you hear the phrase “DUI/DWI breath tests”: the police station breath or blood test. This official test is given by a police officer who is specially certified to administer it. If regularly calibrated, this machine is very accurate at determining blood alcohol content legal limits. The results of this test can, and will, be used against you.

You do not have to take this test, but you should be very cautious before making the decision to refuse. No one can make you take these DUI/DWI breath tests—but there are serious consequences for refusing one.

If an officer has reasonable grounds to ask you to take a breath test and you refuse, then the Motor Vehicle Administration (MVA) can, and probably will, impact your right to drive. First, the officer will take your driver’s license from you and give you a piece of paper that serves as your temporary driver’s license. This paperwork will inform you that you have a right to a hearing to argue that your driving privileges should not be affected.

There are important deadlines for filing that paperwork, so read it very carefully to avoid the harshest penalties for DWI AND DUI. If the MVA process does not go smoothly, your refusal of a lawfully requested police station breathalyzer carries a 9-month suspension of your driver’s license. Each subsequent time you refuse, you will receive a 2-year suspension of your license. And there’s no work-restricted option for this suspension. The only way to get around these suspensions is to install an Ignition Interlock machine in your car for a period of at least 1 year. Unlike most refusals to cooperate with the police, turning down a breathalyzer can be used against you in your trial.


If you have been charged with a drunk driving offense in Maryland, you could face the following penalties:

  • First offense:
    • Up to one year in jail
    • Up to $1,000 fine
    • Minimum six-month suspension of driver’s license
  • Second offense:
    • Up to two years in jail
    • Up to $2,000 fine
    • One-year suspension of driver’s license


While the penalties for a Maryland DWI are not as severe as the penalties for having a BAC over .08%, there are still serious consequences:

  • First offense:
    • Up to sixty days in jail
    • Up to $500 fine
    • Minimum six-month suspension of driver’s license
  • Second offense:
    • Up to one year in jail
    • Up to $500 fine
    • One-year suspension of driver’s license

It depends on whether the headlights are on, the keys are in the ignition, the car is running, and where you are located in the vehicle. If you admit to drinking before you drove to the current location that admission may be used against you. Also, empty alcohol bottles and containers are a factor along with external physical observation conducted by the officer.

1. Don’t Drink and Drive!

Obviously, the best tip is to never put yourself in a situation where you are likely to drink and drive.

  • If you are going to drink, choose a designated driver.
  • If you realize you had too much to drink, call UBER, a cab, or have someone pick you up.

2. If you decide to drive and realize you are impaired, pull over and park in a safe and legal area

Take your keys out of the ignition. You can still be charged with a DUI even if your vehicle is stopped. If your vehicle is blocking a roadway and indications were that you had been driving (keys in the ignition, hood warm to the touch) you will be charged with a DUI, so make sure to park in a safe place and take the keys out of the ignition and move to the back seat.

3. Don’t attract attention to your vehicle

In my experience, some DUI drivers are stopped for reasons most people wouldn’t expect. Forgetting to turn on your headlights, playing your music too loud, tinted windows, expired tags are just some of the silly reasons that people are pulled over for DUI that have little to do with being impaired.

4. If the police car pulls you over, stop in a safe and well-lit area

How you respond to police pulling you over is just one of the tests in whether you are impaired or not. If you take too long to pull over or pull over quickly on the side of the freeway, the officer is going to take this into account in gauging whether you are DUI or not.

5. Be Polite

If someone gave you a hard time at your job, you’d probably make their life more difficult. Police Officers are no different. While being courteous will not get you out of a DUI, it will make the officers hopefully treat you with the same respect. The arresting officer has to document everything you do and your demeanor on a police report that will be vital to your criminal and MVA cases, so how he depicts you in that report is very important.

6. Don’t be a Chatty Cathy

You don’t have to answer any of the preliminary questions, i.e. what you drank, how much you drank and where you drank. If you feel that you are impaired, your answers will only convict you further. Respectfully advise the officer that you’d rather not answer any questions. In many DUI cases, the driver’s own words are the strongest evidence against them.

7. Refuse to do the preliminary field sobriety tests

The tests that are done at the traffic stop are not mandatory. Again, only refuse to take the field sobriety tests if you feel impaired. If you are already impaired, the result of these field tests are used to substantiate the DUI charges against you, so don’t give them the rope to hang you with. Furthermore, the results of your Field Sobriety Tests are purely at the discretion of the officer.

8. Choose the Breath Test at the Station

Once you are placed under arrest for DUI, you will be provided with an “Advice of Rights Form” advising you of the of penalties if you refuse to take the breath test at the Police Station. Failure to take the breath test could result in the loss of your license for a substantial period of time.

9. Trust your license to a specialist

You have 30 days from the date of your arrest to request a hearing to save your license. If you do not request a hearing, your license will automatically go into suspension. Don’t think that you can go into the MVA hearing yourself and beg and plead to keep your license. The hearing officer will tell you that the hearing deals only with the technicalities of your DUI and has nothing to do with your personal hardship. DUI Attorneys Joseph C. Mckenzie and Payman Tehrani have handled hundreds of DUI MVA hearings and know what the issues are and how to win.

10. Don’t throw yourself at the “mercy of the court.”

One of the common misfortunes that we see as DUI lawyers in court is the poor souls who march in and, attempt to resolve their own DUI case. The common misconception is that the Judge or the Prosecutor will feel sorry for them and give them a break. 


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