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Do You Have the Right to Consult With a Lawyer Before Taking a Breathalyzer Test If You are Stopped for Suspicion of Driving While Intoxicated

DFields@fishbeinpa.com,   Criminal Law   Leave a Comment

One of the hallmarks in American jurisprudence is the concept that the accused has the right to consult with an attorney before making any choices in which a party could be exposed to criminal penalties. In a recent Maryland Court of Appeals decision, Motor Vehicle Administration v. Deering, the Court of Appeals held that a motorist who had requested the right to consult with an attorney before deciding whether or not to take a breathalyzer examination was not entitled to consult with an attorney before deciding whether or not to take the test. This decision creates an anomaly in that if a person is stopped for a suspected alcohol driving offense the party may not be given the right to consult with an attorney before deciding whether to take the test and therefore the party may be subject to administrative sanctions for failing to take the test and/or administration sanctions if the test results reaches certain levels. In the criminal context, however, the test result may not be admissible if the party files a motion to suppress the test results because they requested the right to speak to a lawyer before the test was given and the request to speak vwith can attorney was denied. The Court of Appeals in Deering went through a review of the case law in Maryland and concluded that although “if a detained driver is not given the right to consult counsel there may be implications in a criminal case such as the suppression of test results; in the administrative context, similar remedies do not exist.” Thus the Court of Appeals held that “even if a suspected drunk driver is denied the opportunity to consult counsel before deciding whether to take a breath test under the implied consent law, the driver remains subject to an administration license suspension that the statute assigns to a test refusal or a particular test result”. This result means that drivers who are driving in Maryland must decide on their own whether or not to take the breathalyzer test. There are administration penalties of a suspension of up to 120 days for failing to take the test and administrative penalties if the test results are above .08. Thus while an individual stopped for a suspected drinking and driving case may request the right to consult with counsel before making an informed decision about the taking of the test, there is no right in Maryland for an individual to speak with counsel before making that decision.

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