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Is it unlawful to blow less then .08 BAC following a DUI stop?

Often times people will come into the office charged with DUI after providing a breath sample of less than .07 or .08. They wonder how it is they were charged in Maryland for DUI/DWI when they blew a legal BAC number between .01 and .06. This is an important question and a misnomer in the legal system. The TV commercials, billboards, and public announcements all indicate that a .08 BAC is the legal limit for alcohol in Maryland. Unfortunately, the little-known truth is that this is simply not correct.

You see, police officers in their zeal to make an alcohol related arrest and show the brass that they are making Maryland’s streets safer, while meeting their quotas, will happily arrest a driver with any BAC content as long as the driver is demonstrating some form of impairment. What is some form of impairment?

Well that’s really the easy part, some form of impairment means failure to stay within your lane of travel, such as crossing over the white dotted lines, it could mean speeding, and it certainly means a failure to perform the field sobriety test adequately when stopped by a police officer for any reason such as not wearing your seatbelt. In other words, failure to wear your seatbelt is now a first-tier offense meaning that you can be stopped and ticketed for this offense (in the past you could not be stopped for this violation alone). Once the police officer senses the odor of alcohol on your breath for something as minimal as one beer she will automatically get you out of your car for field sobriety tests. If you are like every other normal citizen you will not perform the field sobriety tests with 100% acuity and therefore the officer will arrest you for failing to perform the roadside gymnastic test adequately.

Once at the police station you will be asked to provide a breath sample which may come back low in the .02-.05 area and this is where you get charged in many cases despite the low and legal BAC number. It places the police officer in an awkward situation because she has wasted her time with a stop and dragging you to the station and wasted the time of the breath technician only to come back with a low and legal BAC. Nobody likes to have egg on their face so to avoid that you will be charged with DWI or driving while impaired despite having what you were told was a lawful BAC.

Because you were charged, you now face a serious criminal event which could have long-term ramifications for you so you are compelled to retain counsel to defend you. Happily competent counsel should be able to dispose of the charges in a successful fashion but nevertheless you will have to deal with a significant financial outlay, the embarrassment of being charged and having to go to court and sit through a trial; all for engaging in behavior which you were told was lawful.

The truth of the matter which I have often elucidated is that Maryland, as in all states, there is actually zero tolerance. Meaning the only way to eliminate the exposure of an alcohol charge ad arrest is not to consume any alcohol while operating a motor vehicle. If the police can stop your car and arrest you for such a low BAC and charge you with impairment forcing you to retain counsel and go to court which you may or may not win depending on how you perform the field sobriety tests (among other factors) then that behavior is actually not lawful at all. It is rather unfortunate that the government does not make this plain and clear to Maryland’s motoring public. But now you know the truth and can govern yourself accordingly.