What are the Rules Governing Breath Tests in DUI/DWI Cases?

A person commits driving while impaired (DWI) in Maryland if they operate a motor vehicle with a blood-alcohol content (BAC) of at least 0.07%, and driving under the influence (DUI) if their BAC is 0.08% or greater. If police arrest you on suspicion of DUI/DWI, it is common practice to request a chemical test, i.e. a Breathalyzer, to determine BAC. These tests must follow certain rules in order to provide admissible evidence that can be used against you in court. For example, the test must be performed by a qualified technician or analyst.

Court of Special Appeals: Strict Compliance with 20-Minute Waiting Period Not Necessary to Admit BAC Results

There is also a Maryland state regulation that states the subject should not eat, drink, smoke, or have any foreign substance in their mouth for a period of at least 20 minutes before taking a breath test. This is to ensure that nothing contaminates the BAC reading. The regulations state the police, or the person administering the test, must observe the subject during this 20-minute period and check their mouth beforehand.

The Maryland Court of Special Appeals recently addressed whether the failure to strictly follow this 20-minute rule rendered the result of a breath test inadmissible in a criminal trial. The case before the Court, Dejarnette v. State, involved a DUI case from Somerset County. A Maryland State Trooper stopped the defendant due to a suspected traffic violation. During the traffic stop, the trooper smelled alcohol coming from the defendant’s vehicle and observed other signs of possible intoxication.

After the defendant admitted he had been drinking earlier and failed several field sobriety tests, the trooper placed him under arrest. Back at the police barracks, the defendant agreed to take a breath test. The test revealed the defendant had a BAC of .094%.

At trial, the defendant argued that these results were inadmissible because the police failed to strictly observe him for at least 20 minutes prior to administering the test. The judge disagreed, stating that failure to strictly adhere to the regulation “went to the weight of the evidence,” not the admissibility. A jury proceeded to find the defendant guilty of DUI and DWI.

On appeal, the defendant repeated his objection to the admission of the breath test. But like the trial judge, the Court of Special Appeals held that strict compliance with the 20-minute observation rule was not necessary to admit the results. Specifically, the appellate court said the regulation “does not require an officer to stare continuously with unbroken eye contact at the suspect for 20 minutes.” It was “reasonable” for the officers to “use numerous senses to observe” whether or not the defendant drank, ate, or smoked anything prior to administering a breath test. Ultimately, the jury was free to disregard the results of the test if they believed it “was not administered properly.”

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This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 705-5137.

Source:

https://www.courts.state.md.us/data/opinions/cosa/2021/2316s19.pdf