The issue is not whether you have been drinking. The Prosecutor must prove that (1) your consumption of alcohol or drugs influenced or impaired the ability to drive or (2) you consumed more than a specific quantity of alcohol.

Proving the Impact of Alcohol

In the typical case, a police officer testifies that the driver smelled of alcohol, had bloodshot eyes, and slurred his speech. Of course, these characteristics are also consistent with a person who had a beer after a long day at work and was frightened when stopped by the police officer.

Where police officers build their case is in “requesting” that the driver make the “voluntary” choice to perform “field sobriety tests”. Because some folks can drink large quantities and perform the tests adequately, Maryland law makes it illegal to score above .10 on the breath test.

Your Rights

You can not be forced to perform any field sobriety tests. At trial, the police officer can testify that you refused. As I discuss elsewhere on this Web Site, it seems unlikely that even a sober person, in the presence of a police officer, can avoid making mistakes in a one leg stand and a walk-and-turn test.

Under Maryland law, your consent to the breathalyzer test is assumed. You can refuse, but the MVA then has the authority to suspend your license. If you register above .07, then the MVA also has the power to suspend your license. There is a benefit to the breathalyzer test. If you’re sure that you indeed only had a beer or two, the breathalyzer result should establish your innocence. I once got a call from an old musician friend. He’d been performing all night in a bar, and his only drink was the night cap. He called me at 3:00 a.m., and, after a full discussion, he took the test and passed. The police released him and tore up the tickets.