MYTH #1: A Driver is Required to Take Field Sobriety Tests When Requested by a Police Officer.

FALSE. When a police officers suspects a driver of being impaired by alcohol or drugs, they will ask the driver to step from the vehicle and perform field sobriety tests.  In Maryland, these tests typically consists of the Horizontal Gaze Nystagmus, the One Leg Stand, and the Walk-and-Turn tests.  A driver has an absolute right to refuse to take any of those tests without penalty.  Although a police officer is not required to tell the driver they can refuse, in the vast majority of cases the driver is far better off politely telling the police officer I do not wish to take field sobriety tests.

MYTH #2: Only a Drunk Driver Will Perform Badly on Field Sobriety Tests

FALSE. The reason that field sobriety tests are not in the drivers best interests to take is that in many ways these tests are designed for the driver to fail even absent alcohol or drug impairment.  The driver may be tired, physically unable to conduct these tests in any situation because of a medical condition, or extremely anxious at being in what can be a very frightening situation for the driver.  There are many medical conditions that will result in poor performance, and even the creators of these tests recognize that certain drivers can not perform well on these tests under any situation.  These tests are typically conducted on the side of the road, with cars driving by within feet of the driver, and in poor lighting conditions.  Yet the driver by taking theses tests runs a very high chance that many of the innocent reasons for poor performance will be construed by the officer as resulting from the driver being impaired.  Additionally, many of the clues the officer looks for are subjective in their scoring such that if the officer has already formed a belief a person is impaired, which many do upon first contact with the driver, they are likely to find clues on the tests in order to support their belief.  This is known in the scientific community as confirmation bias.  After all, an officer is not asking the driver to perform these field sobriety tests unless he or she already suspects the driver of being impaired, so in most situations the driver is only helping the police officer build a case against them.

MYTH #3: A driver must take a Preliminary Breath Tests (PBT) when asked by a police officer

FALSE. A PBT is sometimes offered by a police officer to a driver in order to capture a blood alcohol content on the roadside.  This is a breath test offered BEFORE a driver is arrested, and hence the term preliminary.  This will often occur after field sobriety tests have been administered, or offered when the driver refuses to take field sobriety tests.  Typically a police officer offers a PBT to the driver if they are unsure whether or not to arrest the driver for being impaired, and are seeking further evidence to support their decision.  If the PBT is taken, the result will be usable by the police officer in forming probable cause to arrest the driver.

A driver, however, has an absolute right to refuse to take the PBT without suffering any criminal or administrative penalty involving the drivers license.  Again, in the vast majority of cases the driver is far better off politely telling the police officer I do not wish to take the PBT.  There are many reasons for this even when a person does not believe they have had too much to drink.  First, these roadside devices are less accurate than the machines at the station used after arrest, and are not usually calibrated regularly or maintained properly.  Typically these devices have simply been sitting in the trunk of the police officers car.  Second, there are things that a person could drink or eat that could still cause a PBT to show a much higher blood-alcohol content then truly exists.  Even if a person were to burp prior to the test, that can cause alcohol to be detected in a greater amount then is truly in a persons blood thereby producing inaccurate results.  Third, some people are not a good judge of how much their blood-alcohol content is based on what they have been drinking.  Even if you feel fine, and do not demonstrate impaired driving, by taking the test you may be providing the police officer all the evidence they need to place you under arrest.  Finally, even if you take the PBT and show no evidence of alcohol impairment, the officer may use the absence of alcohol to prove that it must be prescription or non-prescription drugs that is causing the impairment, thereby providing probable cause of driving while impaired by drugs.

MYTH #4: After a drivers arrest, I have to take the breath test at the police station.

FALSE. A major piece of evidence law enforcement relies on in proving a case against an impaired driver is the post-arrest breath test.  The device obtains a blood alcohol content (BAC) from the driver, and based on the reading certain legal presumptions of impairment from alcohol are possible.  For example, if the result is over .08, a driver is considered per se to be driving under the influence of alcohol.  Nevertheless, a driver is still not required to take the post-arrest breath test at the police station and may legally refuse.

There are, however, potential administrative penalties to the driver for refusing to take the post-arrest breath test.  Of most significance for most drivers is that if a person is found to have refused to take the test, there license may be suspended for 120-days for the first refusal, and one year for the second refusal.  These suspensions are imposed without the benefit of the driver even receiving a restricted license, such that the driver could still drive for purposes of such things as work.  In some cases, a driver may be able to maintain their ability to drive after refusing to take the test, but only with maintaining an ignition interlock device in their vehicle for one year.  This would require a driver to periodically blow into a machine while driving in order to verify the driver does not have alcohol in their system.  There are defenses an experienced DUI attorney can raise to prevent such a suspensions from being imposed on the driver that has refused the breath tests in certain cases, but refusing the breath test certainly exposes the driver to such administrative penalties.

Whether a driver should or should not take the post-arrest breath test involves a careful consideration of a number of factors.  For example, even with taking the breath tests there are certain administrative penalties imposed for drivers that have a BAC greater than .08, and even greater administrative penalties imposed for drivers that have a BAC greater than .15.  Depending on the particular case, a driver may be far better refusing the post-arrest breath test and risking the administrative penalties and avoiding that evidence being used against them in a criminal case.  Having the ability to speak with an experienced DUI attorney, if possible, is of great help when making this decision after being arrested.

MYTH #5: A driver cant speak with an attorney before taking the post arrest breath test.

FALSE. In Maryland, a driver has the right to consult an attorney before deciding whether or not to take a post-arrest breath test.   This decision is an extremely important one, and can have criminal and administrative consequences for the driver.  There are many factors to consider including the potential criminal penalties faced by the driver if convicted of DUI, the importance of maintaining a license for employment, the amount the driver had to drink that night, whether the driver holds a Commercial Drivers License, and any prior DUI-related offenses the driver has experienced.  In some situations, the administrative penalty for refusing the breath test may be better to risk than giving the police evidence of your BAC.  Different drivers will have difference considerations, and that is why it is important to be able to speak with an experienced DUI attorney if possible at the time.  While you have the right to speak with an attorney prior to deciding to take the test, the time allotted for  you to reach and attorney is limited.  That is why it is important to keep a lawyers emergency contact information with you so you can make that important phone call if ever in that situation.  

MYTH #6: If a driver has a BAC is over .08, they are automatically going to be found guilty.

FALSE. When a person has a reading of .08 or above on the post-arrest breath machine, they will be charged with Driving Under the Influence Per Se.  A major misconception among many drivers, and even some lawyers, is that once a .08 BAC is obtained by the police there are no real defenses that can be lodged.  THAT IS SIMPLY NOT TRUE. An experienced DUI attorney understands that there are many defenses possible, including whether the police officer even had the right to stop your car, whether they had the right to request Field Sobriety Tests be performed, whether they had probable cause to arrest the driver, whether the driver was properly advised of the administrative penalties before administering the breath test, whether the person was given the reasonable chance to consult an attorney in making their decision to take the test, and whether or not the regulations promulgated by the State Toxicologist were in fact followed by the police.  There are also different factors that could produce a BAC level that is inaccurate, such as a drivers pre-existing medical condition or an improperly administered test.  As such, even with a BAC over .08, there are definitely situations that would lead to a driver being acquitted.

MYTH #7: If a driver has a BAC under .08, they are not going to be guilty of any offense.

FALSE. Many people incorrectly refer to .08 BAC as the legal limit, thereby creating the false believe that a person can not be prosecuted if their BAC is less than that amount.  In reality, when a person has a reading under .08 on the post-arrest breath machine, they can still be prosecuted and convicted of varying driving impaired offenses.  If a drivers BAC reading is over .07 but less than .08, this is considered prima facie evidence of the lesser charge of driving impaired by alcohol.  Even a reading of a .06 BAC is considered a factor to be considered in determining whether a driver should be found guilty of driving impaired.   For example, the police may allege that a person was significantly impaired in driving even with a low BAC because the person was sensitive to alcohol, or had a mixture of alcohol and drugs that impaired them more than if just alcohol.  If the reading is a .05 BAC or below, there is a presumption by law that a person is not impaired by alcohol.  Nevertheless, even with that low of a BAC reading, drivers have been prosecuted and convicted as their BAC level is still something to be considered along with other evidence.  

MYTH #8: DUI only involves a person driving while impaired by alcohol.

FALSE. While alcohol accounts for the large majority of DUI cases, a person can also be  prosecuted for driving while impaired by drugs.  A driver can be charged with being under the influence of illegal drugs, such a marijuana, or prescribed medication.  At times, a driver will be accused of being under the influence of a combination of drugs and alcohol.  In these cases, the police will sometimes use a Drug Recognition Expert (DRE) to conduct an evaluation of the driver and then determine what type of drug a person is impaired by at the time they were driving.  An experienced DUI lawyer would need to obtain a thorough medical background of the driver in order to defend this type of case as there are situations where a DRE will conclude a person is impaired by drugs when the person is merely suffering from a medical condition.  In such situation, a drivers doctor may become a critical witness to explain how the police officers opinion is not medically accurate.

MYTH #9: A drunk driving charge is just a traffic offense.

FALSE. When a person is charged with driving impaired by alcohol and/or drugs, they have been accused of committing a criminal act.  The driver for a first conviction can face up to one year in prison and a $1,000 fine if convicted of Driving Under the Influence Per Se, and up to sixty (60) days in jail and a $500 fine if convicted of the lesser charge of Driving While Impaired.  For subsequent offenses, a person can face greater period of incarceration and greater fines.  In addition to these penalties, the driver can face many years of supervised probation, testing, restrictions on a persons ability to drive in the future, and court mandated treatment.  A conviction can also have far reaching ramifications outside of the legal system.  A DUI conviction can result in a person losing their job as employers become afraid of the risk a person may pose in  operating company vehicles.  A DUI conviction is also something that will become part of the public record, and can lead to car insurance rates increasing, and even life insurance companies refusing to insure the person.  A DUI conviction even prevents a person from being able to enter certain countries, such as Canada.  In short, a drunk driving charge is not just a traffic offense, and a highly experienced DUI attorney is valuable in seeking to avoid or minimize the ramifications a person may face.

MYTH #10: All lawyers have the same experience and training in handling DUI cases.

FALSE. A misconception shared by many is that all lawyers have the same training in handling drunk driving cases, and that is simply not true.  Defending a person in a DUI is a complicated endeavor as it involves potential criminal penalties and serious licensing restrictions.  Important questions a person should ask an attorney when determining whether to retain him or her to defend them in a DUI are as follows:

1. How many DUI cases have you handled?
2. Do you have experience prosecuting these cases as well as defending against them?
3. Do you own any breath-testing equipment?
4. Have you taken the National Highway Safety Administration (NHTSA) approved Field Sobriety Training that is taken by police officers?
5. Have you taken the Nation Highway Safety Administration (NHTSA) approved Field Sobriety Instructor training such that you are even qualified to teach the course?
6. What DUI defense organizations do you belong to so you can keep up-to-date on the latest case law and information on the field?
7. How many DUI specific seminars do you attend?
8. Do you have any training in medical causes that mimic impairment by alcohol or drugs?
9. Do you have training and experience in defending both alcohol and drug involved impaired driving cases?
10. How many cases have you tried versus negotiated a plea?

Based on the answers to these questions, a person will be able to make an informed decision about the experience a lawyer has in the particular type of matter he or she is facing.  After all, a DUI conviction can be a traumatic and very costly for a person, and having an aggressive and experienced DUI attorney is important when dealing with the complexity of the legal issues involved in a DUI case.

The information provided is not intended to provide legal advice, nor create an attorney-client relationship, but is being provided for informational purposes only.