How Does a Positive Breath Test Affect My DUI Case in Maryland?

Good lawyers never pull punches. In Maryland, a positive breath test roughly doubles the DUI conviction rate, from about 40% to about 80%. But eight out of ten is substantially less than ten out of ten. So, regardless of the test result, a DUI case may have a happy ending for a defendant, especially if that result was on the borderline, perhaps .08 or .09.

Especially in these situations, a Waldorf, MD criminal defense attorney from the Law Office of Robert R. Castro can successfully resolve these charges, so defendants avoid the harsh direct and indirect consequences of a DUI conviction. The direct consequences include driver’s license suspension, extended court supervision, and high fines. The indirect consequences include higher auto insurance rates, employment issues, and the stigma associated with a DUI.

Probable Cause for The Test

Before police officers ask drivers to blow into tubes, they must have probable cause to believe the driver is DUI. The three approved field sobriety tests are the best evidence of probable cause. These three tests are:

• Horizontal Gaze Nystagmus (DUI Eye Test),
• One-Leg STand, and
• Heel-to-Toe Walk (walking a straight line).

The HGN test has come under fire recently. Alcohol causes nystagmus, or involuntary pupil movements at certain angles. But alcohol is not the leading cause of nystagmus. In fact, many people have this condition. But the symptoms are so mild, they do not know it.

As a result, many Charles County judges only allow prosecutors to use HGN test results for limited purposes.

The other two tests are similar in their design. These two tests are divided attention tests that measure the subject’s physical dexterity and mental acuity. Scientifically, intoxicated people cannot follow instructions and physically execute those directions.

In lieu of the approved tests, prosecutors must rely on unapproved field tests, such as reciting the ABCs. More commonly, they must rely on weak circumstantial evidence obtained during the initial investigation.

Physical symptoms, such as bloodshot eyes, only prove alcohol consumption. They do not establish the level of consumption.

Breathalyzer Flaws

Breath-to-blood conversion issues were once the most common Breathalyzer flaw. This test uses breath alcohol levels to estimate blood alcohol levels. But the Legislature closed that loophole several years ago. Now, drivers are intoxicated as a matter of law based on alcohol concentrations at 100 milliliters of blood or 210 liters of breath. However, some defenses are still available, mostly the calibration defense.

This defense has always been the strongest breath test defense. A judge in nearby Massachusetts recently threw out over 10,000 DUI convictions because the Breathalyzers weren’t properly calibrated.

Improper calibration affects device accuracy as well as device reliability. For a La Plata, MD, criminal defense lawyer, these issues are separate. A gadget can be reliable but not accurate, and vice versa. To establish proper calibration, the state must produce the following:

• Maintenance record without any gaps or other issues,
• Officer’s current certification to operate the device, and
• Conclusive evidence that the department always pulls malfunctioning Breathalyzers from service.

Calibration is a personal issue as well. A slight fever or other body temperature change could affect the Breathalyzer result.

Work With a Diligent Calvert County Lawyer

There’s a big difference between an arrest and a conviction. For a confidential consultation with an experienced criminal defense lawyer in Prince George’s County, Maryland, contact the Law Office of Robert R. Castro, 11701 Central Ave Suite 200, Waldorf, MD 20601. You can call us at (301) 870-1200 or go online.

This article has been provided by the Law Office of Robert R. Castro. For more information or questions, contact our office to speak to an experienced lawyer at (301) 870-1200.