Question: What happens if you refuse the roadside breath test in Maryland?
Answer: The PBT or the roadside breath test in Maryland is also known as a preliminary breath test. That is controlled by Transportation Article 16-205.2. And interestingly enough, the officer is supposed to technically read you your rights under 16-205.2. Some do, some will have you sign a little piece of paper and then read it to you. Others won’t even bother with it, they’ll just ask you to blow. The interesting thing about the preliminary breath test is that you do not have to blow in there, and you should not, in fact, blow into the device.
The reason being is, the device is unreliable and because it is unreliable, the courts will not use that number against you. So, what that means is, when you blow into the handheld device on the side of the street, neither the police officer can say what you blew, nor can the prosecutor use that number against you in court. So, in those regards, it’s sort of non-consequential. But the problem is that the officer will use that number as probable cause in his arrest decision. So, if he is on the fence, maybe you did well on the field sobriety test or maybe there was no particular bad driving other than, say, a burnt out tag light, the officer may not know whether or not he is going to arrest you. But once you blow in the machine, if you blow, say a .08, which is right on the line, well, now he’s definitely going to arrest you because he figures you will blow a .08 back at the station. If you happen to blow into the PBT and you blew a favorable number, say, something low, which would be like .05 or .04 or .03, that number is beneficial to you as the defendant and, interestingly enough, you can use that number in your own defense in court. So, whereas the officer cannot use that number and the prosecutor cannot use that number against you for any reason, the defendant can use the number if it benefits him.
Consequently, if you knew that you only had one beer or two beers and, therefore, you number’s probably around a .04, maybe a .05, that can be beneficial to you. But, in the majority of the cases, people don’t seem to have those numbers. They’re typically .07 or a .08 or a .09 or more, and in that case the officer is definitely going to arrest you. So, the important thing to know about a preliminary breath test is: it is a street-side test, it is unreliable, the State cannot use it but the officer can for arrest purposes, and therefore, blowing in those devices is often times not beneficial to you. Moreover, police officers almost never tell you what you blew. So, if you blow in the machine to try to be helpful and find out where you stand, he will not tell you where you stand. So it’s probably best not to provide that sample.