Recently a Rockville City Police Officer stopped a woman for swerving and almost striking another vehicle. When the officer initiated contact with the driver, he “observed” a strong odor of alcoholic beverage, bloodshot water eyes and slurred speech. He asked the driver to exit the vehicle and perform the Standardized Field Sobriety Tests–Horizontal Gaze Nystagmus (HGN), Walk and Turn and One Leg Stand. She, of course, did not perform to the officer’s satisfaction and was arrested. This is where it gets interesting. She was taken to the police station to perform a breath test. She consented to the test. When asked to blow into the machine she was bawling so hard that she was unable to give a sufficient breath. She was twenty-one years old and was extremely upset and kept asking to call her father but the officers refused. They kept pressuring her and threatening her about taking the breath test that only furthered her anxiety. Ultimately, she was crying so hard that she was unable to give a sufficient breath and marked as a refusal for insufficient breath. She was facing a 120 day suspension of her driving privileges and possible enhanced penalties at her trial. Fortunately she contacted a Maryland DUI Attorney.
Section 16-205.1 of the Transportation Article of the Maryland Code allows the MVA to suspend a driver’s license and disqualify a commercial driver’s license based on a refusal to submit to a chemical test for intoxication. A refusal may be found not only in instances when the driver outright refuses to take the test, but also when that conclusion is inferred from conduct. This may happen in situations where the driver first agrees to submit to testing but later deliberately frustrates the testing procedure by blowing improperly into the testing device.
The MVA, as a “proponent” of suspensions, has the burden of establishing that there had been a refusal by conduct. Once the MVA offers some evidence to support the conclusion of test refusal, the burden shifts to the driver to demonstrate that there is an innocent explanation for her failure to complete the test.
In this case, she did not intentionally frustrate the test. She was sobbing so hard that she could not perform a deep lung breath. The officers had plenty of time to allow her to compose herself and still take the test within the two hour window. Instead, they badgered her making her sob more uncontrollably.
Maryland DUI Attorney William Day timely requested a hearing requested a hearing. When we presented her testimony to the Administrative Law Judge (ALJ) the judge postponed the hearing and issued a subpoena to the officer. The officer failed to appear and the ALJ entered a "No Action" meaning that her Maryland Driver's license was not suspended. This was an excellent result for someone that agreed to take the test but was so upset she could not comply.
_____________________________________________________________________________________________ Maryland DWI attorney William Day practices DWI law before the Maryland state and federal courts. His practice area also includes drug related charges, alcohol related charges and juvenile charges. Call today for a free no obligation consultation of your case.