MVA & Breathilizer – In plain English


    It’s the rare instance when one is arrested for a DUI that somehow or other the MVA is not involved. Here we are talking about pre-trial. Please note that depending on what happens in court you very well may have yet another hearing at the MVA to try and save your license.

                  Although the court cannot and does not give points in any traffic case, what they in fact do, will determine what the MVA does in terms of assessing points on your driving record. At any rate at this point we are concerned with your pre trial MVA issues.

            Once you have been stopped or detained based on reasonable grounds to believe that you, the driver, have been driving or attempting to drive a motor vehicle you will be asked to submit to a breathalyzer tests. (Note, this is not the preliminary breath test, which is given on the scene, which will be discussed elsewhere and assuming not a situation, where a blood test is called for).

            Many clients have asked me if they are required to take such a test and the answer is no. Please note, however, that the law deems that you consented to take a test to measure the alcohol concentration or drug or controlled dangerous substance content in your system. Again you may refuse to take this test unless you were in an accident resulting in the death or life-threatening injury to another person. This being said there are serious penalties via the MVA for such a refusal and there are now more serious penalties even if you do take the test and receive a high score.

      When I first began practicing law in almost every situation if one refused the test or received a high breathalyzer score they could still receive a license that would allow that person to drive for purposes of employment and or educational purposes. The landscape has change.

      PLEASE NOTE – in this section I am dealing with situations where you have no legal defense to the taking of the test or the refusal thereof. Many times these cases can be won, but here we are dealing only with situations that assume there is no legal defense and we are trying to mitigate the damage to you. 

If one should refuse to submit to the test, or if they do submit to the test and the result indicates an alcohol concentration of 0.08 or more at the time of the testing, your Maryland driver’s license will be confiscated, you will be issued an order of suspension and, if eligible, a temporary license valid for 45 days will be issued on the spot by the officer. 

Here’s what now can happen: 

  1. If your test result is an alcohol concentration of at least 0.08, but less than 0.15: The suspension will be 45 days for a first offense and 90 days for a second or subsequent offense.
  2. If your test result is an alcohol concentration of 0.15 or more: The suspension will be 90 days for a first offense and 180 days for a second or subsequent offense.
  3. If you refuse to submit to a test: The suspension will be 120 days for a first offense and one (1) year for a second or subsequent offense. Here comes one of the recent changes in the law, which clearly shows the tough stance our legislature has taken with regards to these laws. An additional criminal penalty of note more than $ 500.00 or imprisonment for note more than 2 months or both, may now be imposed under Section 27-101 (x) of the Maryland Vehicle Law if you are convicted of a drunk or drugged driving offense under Section 21-902, and the judge or jury finds beyond a reasonable doubt that you knowingly refused a test arising out of the same circumstances. Its even worse for those who have a commercial driver’s license (CDL) and were driving a non commercial motor vehicle when you were stopped, and refused to submit to a test, your CDL, or privilege will be disqualified for one year for a first offense or for life if your CDL or privilege has been previously disqualified for at least 1 year under Section 16-812 (a) or (b) of the Maryland transportation Article, a federal law, or any other state’s law. The issues you face if you were driving a commercial vehicle and refuse the test will be discussed later on.

SOME GOOD NEWS  – If your test result is an alcohol concentration of 0.08 but less than 0.15, the suspension may be modified or a restricted license issued at a hearing in certain circumstances. The circumstance would be if losing your license would essentially cost you your employment and also if it would prevent you from continued attendance in a bona fide educational setting.

Some easy examples of the first would be if you actually drove for a living or your employer required you to have a valid license as a condition of your employment, i.e. you sometimes had to run errands etc.  I have been able to also obtain this restricted license for people when I was able to show that there was no public transportation available to get someone to their place of employment or even if there was that the service available made it impractical. Education could be even for alcohol education classes or if you were a Semenax full time student. Please note the words “may” are to be applied here. Another words the Administrative Law Judge does not have to do this so it is extremely important to have legal representation at these hearings. 

SOME BAD NEWS – If you refused the test, or took the test with a result of 0.15 or more: You will be INELIGIBLE for modification of the suspension or issuance of a restrictive license. There is a major exception to this and it is as follows. You may participate in the Ignition Interlock System Program under Section 16-401 of the Maryland Vehicle Law. Its just like it sounds – you will have to have your car equipped with a device that prevents you from operating it if you have alcohol in your blood. Again – note this is for one year and assuming you do not drink and drive it’s a good way to avoid the severe impact of having a complete license suspension. Your other alternative is just to except the flat 120-day suspension. Again, you may have a valid legal defense that needs to be determined before making any decision. 

MVA hearing with regards to the interlock? I am amazed at the absolute audacity of some attorneys who actual ask for an MVA hearing on this issue of the interlock where there is no valid legal defense. Another words at such a hearing an Administrative Law Judge “may” modify a suspension for the refusal by allowing you to participate in the Ignition Interlock System program for one year. Note the word – May. Another words by asking for a hearing you can only go down. You have the right to directly participate in the program for a year – no ifs ands or buts, so why ask for a hearing when the Judge may not allow it and sometimes they do not. This does not mean you should not ask for a hearing if you have a valid defense and there are, sometimes, valid defenses. I have won these hearings from time to time, but if I did not see a valid legal defense I would be doing you a disservice to have you even have a hearing. Note that with the interlock program you thusly can avoid the period of suspension for your refusal or for obtaining a score of 0.15 or more 


  1. Your driver’s license may not be currently suspended, revoked, canceled or refused.
  2. You were not charged with a moving violation arising out of the same circumstances as the Order of Suspension that involved the death of, or serious physical injury to, another person.
  3. Within thirty (30) days of the date of the order of suspension you a) elect in writing to participate in the Ignition Interlock System for one year, instead of requesting a hearing, and b) surrender a valid Maryland driver’s license or sign a statement certifying that the license is no longer in your possession. The ignition interlock election form is located on the reverse side of the driver’s copy of the Order of Suspension.


You may request an Administrative Hearing at any time within 30 days of the date of the Order of Suspension to show cause why your driver’s license or privilege should not be suspended. 

YOU MUST REQUEST A HEARING WITHIN 10 days of the date of the Order of Suspension to insure that your privilege to drive is not suspended prior to your hearing. Another words, you have 30 days, but if not done within 10 days your suspension will be in effect prior to your hearing – so request the hearing NOW if warranted. 

Your request for hearing must be in writing. You should have within your possession the ” hearing request” form that was given to you by the arresting officer. Send your request to the Office of Administrative Hearings at 11101 Gilroy Rd., Hunt Valley, Md. 21031-1301. You MUST include a check or money order for $ 125.00.which is the required filing fee, made payable to the ” Maryland State Treasurer”. The hearing request is invalid without this fee. Please note if the hearing is “won” this fee is refunded. 

You may recall that previously I had mentioned I would discuss OFFENSES OCCURING WHILE DRIVING A COMMERCIAL MOTOR VEHICLE and in that situation in addition to any suspension for a test failure or refusal, if you were operating a commercial vehicle and your test result indicates an alcohol concentration of 0.04 or more, or you refused to submit to a test, your commercial driver’s license or privilege shall be disqualified 1 year for a first offense, or 3 years for a first offense committed while transporting hazardous materials required to be placarded, and disqualified 1 year for a first offense, or 3 years for a first offense committed while transporting hazardous materials required to be placarded, and disqualified for life if your commercial driver’s license has been previously disqualified for at least one year under MD TA 16-812 (a) or (b), a federal law, or any other state’s law. 

TIME OF SUSPENSION – Your driver’s license or privilege to drive will be suspended on the 46th day after the order of suspension: Presuming you did not request a hearing within 10 days of the date of the order of suspension, or, if eligible, you do not elect within 30 days of the order of suspension to participate in the ignition interlock system program for one year instead of requesting a hearing. If you submit a valid hearing request, a suspension will not be imposed unless a decision is rendered against you, or if you fail to appear for the hearing. 

Return to view Maryland’s DUI Laws