One of the most common questions I get asked is whether to blow in the breathalyzer machine, known as an EC/IR in Maryland. This post will be a multi part post dealing with the machine, how it works, the advantages and disadvantages of blowing, your rights to blow or not blow and more.
To begin with, after being arrested and taken to the station, the police MUST read to you or give to you to read, certain rights under Transportation Article 16-205.1. The rights are summarized on a form known as a DR 15. From time to time the form is updated. The proper rights MUST be read to you from the proper form or you can move to exclude the results of your test from any court hearing. Your submitting to the test is evidenced by your signature on the form which they will ask you to sign.
Importantly, this form can be somewhat confusing as written and interestingly, you have an absolute right to the advice of an attorney prior to blowing in the machine. This is not a well known fact because the police are not required to inform you of this right and in fact, they will not. However, like Miranda, once you ask for an attorney they must allow you attempt to speak with one or any results or refusal may be suppressed. This is very important. If you don’t understand your rights as read to you, ask for a lawyer’s advice prior to giving any breath sample.
If the police deny you the right to speak with a lawyer when requested, then do not argue with them, you can either blow or not blow, either way, you have been denied counsel and the results of any test may be suppressed by qualified counsel. Miranda warnings do not necessarily apply in this setting per se, but the DR 15 rights and your right to counsel certainly do. You even have the right to a face-to-face meeting with counsel prior to giving any breath sample as long as such a meeting does not interfere with the two hour limitation to provide a sample.
This is a little known right which no police officer will ever tell you, but most won’t hesitate to deny when requested. It is not necessary to argue with the officer on this point, merely to exercise your right and to ask.
Bruce Robinson Maryland DUI lawyer Serving clients in Baltimore and surrounding counties