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Winning against draconian penalties for refusing breathalyzer tests

Oct 11, 2012 Winning against draconian penalties for refusing breathalyzer tests

Image from National Institute of Standards & Technology.

Responding to a report of a one-car accident, Maryland police officer Weston arrives to find my client in the passenger seat of an otherwise unoccupied car with the engine off and no keys in the ignition.

The officer’s report says my client told officer Weston that he was in an accident. The officer performs field sobriety tests, arrests my client, and offers a breath test at the police station, which breath test my client refuses.

The officer seizes my client’s driver’s license, and gives him a temporary paper license that will expire in 45 days and lead to a 120-day license suspension (for refusing the test, with no accompanying restricted driving privileges) unless my client agrees to drive for a year with the ignition interlock system or timely requests a hearing contesting the suspension.

My client timely opts for a hearing. The administrative law judge focuses on whether there is sufficient proof to show that my client had been driving the vehicle. The ALJ adjourns proceedings to have officer Weston subpoenaed to shed light on the matter, with my being ready to argue that the opponent — Maryland’s Motor Vehicle Administration — is stuck with the four corners of the report that the officer first gave my client and the MVA in writing. Officer Weston never appears at the next and final hearing date.

Plenty of administrative law judges would have said that my client’s admission to being in an accident plus being in the car, was enough to find he had been the driver. Praised be our ALJ, who said that the officer’s report was too ambiguous to find my client had been the driver.

We walk out of the final hearing with my client’s license intact.

Lesson learned: Fight threats to driving privileges, and know in advance what you will do when faced with the prospect of taking a breathalyzer test that may only help convict you versus refusing the test and risking the loss of driving privileges even if the refusal makes the prosecutor’s job tougher to obtain a drunk driving conviction. Beware the risk that refusal to submit to a breathalyzer or blood test for a DWI case will be allowed to be considered against you. Know the difference among the states where you drive with the foregoing risks. Best of all, just avoid getting behind the wheel during several hours after consuming any alcohol, beer or wine, or any medicines that might interfere with driving. A taxi or limousine home or nice hotel room are much less expensive than a lawyer to defend against a drunk driving prosecution.

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