Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219

Breath Tests and Administrative Hearings

In what can only be described as refreshing, Administrative Law Judges have been taking No Action in cases involving a violation of the procedures for breath testing.  In a Maryland DUI, there are 3 categories of breath tests.  .00 to .07;  .08 to .14; and .15 and above.  Up to .07 and there is no Hearing.  .08-.14 can result in the issuance of a restricted license or a suspension.  .15 or above and it is either a flat out suspension or the installation of an ignition interlock.  MD allows you to get the interlock installed and a go the the MVA and get a new license within 30 days of the date of the stop (day 1 is the stop date).  However, if you opt for a Hearing, it is up to the ALJ to decide the sanction if you lose.  Two recent cases involved breath tests in Baltimore County and Harford County where there were obvious procedural flaws.  There are 2 approaches to a procedural violation.  One is to argue that the test might have been below the present sanction level (below a .08 or .15); or the correct argument that the correct test result is unknown, and therefore no sanction should be imposed.  The most difficult ALJ’s accept the latter argument and take no action.  It is nice to see the intellectual honesty they display when they reluctantly grant my Motion.  These Hearings are supposed to be fair and even though the law favors taking the license, the ALJs are doing what the law requires. Everyone marvels at Justice Scalia’s opinion in Melendez-Diaz, but he was just following the dictates of the Constitution even though the result favored the accused.  He was also the 5th vote in setting aside the conviction for burning the American Flag, because that is what he believed the 1st Amendment required.  “Hard”  judges are not always unfair judges.  Good lawyers want a fair shake for their client, and “hard” ALJs have been making fair decisions when presented with legally and intellectually sound arguments.

This is an Addendum to the original post.  Last week an ALJ went nuts fighting me over this argument.  He made it a non-issue based on his interpretation of how breath tests are to be administered and the regulations interpreted. Fortunately it was a .10 and the client was relieved to get out of there with a restricted license for 45 days for work, alcohol education, and medical care for his mother.  The ALJ went as far to suggest that restricted licenses violate the spirit of an ALJ’s responsibility to the public safety, but since the Legislature put them in he had to grant it if the circumstances warranted it.  He dismissed the next case for total insufficiency- no paper work submitted by the arresting police officer.  I got a No Action for an insufficient breath test a few weeks earlier with him, so I did not expect the hostility over this issue.

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Contact Information

  • Gary S. Bernstein, P.A.
  • 29 W. Susquehanna Avenue, Suite 700
  • Towson, Maryland 21204
  • Toll Free: 866-435-2795
  • Locally: 410-415-9219
  • Fax: 410-823-0610

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