Yes, you can refuse a breathalyzer in Maryland — but the consequences are significant. Maryland is an implied consent state under Md. Code, Transp. § 16-205.1, meaning that by driving on Maryland roads you have consented to a breath test if validly stopped on suspicion of DUI. A first refusal triggers a 270-day administrative license suspension, and a second or subsequent refusal triggers a 2-year suspension. The refusal itself can also be used as evidence against you in the criminal case. You may be able to avoid the longer suspension by participating in the Ignition Interlock Program — but you cannot avoid the underlying refusal record. The strategic question is not whether you have the right to refuse. The question is what refusal actually costs and when it might make sense.
Drivers stopped on suspicion of DUI in Maryland often make the refusal decision in the most stressful possible moment — at the roadside, under pressure, with limited information. The decision matters because it shapes both the MVA administrative case and the criminal case in ways that are hard to reverse later.
Maryland’s Implied Consent Law: § 16-205.1
Maryland’s implied consent law is found in Md. Code, Transp. § 16-205.1. The statute provides that any driver operating a motor vehicle on Maryland highways is deemed to have consented to a chemical breath, blood, or urine test if lawfully detained on suspicion of driving under the influence. The officer requesting the test must have reasonable grounds to believe the driver was operating under the influence.
Implied consent does not mean the test is mandatory in a physical sense — it means refusal carries administrative consequences separate from the criminal case. The State cannot physically force a breath sample (with limited exceptions), but the refusal itself becomes a fact the MVA can act on.
What Happens If You Refuse the Breath Test
Refusing a Maryland evidentiary breath test triggers three immediate consequences.
Administrative license suspension. Under § 16-205.1, a first-time refusal triggers a 270-day suspension of driving privileges. A second or subsequent refusal triggers a 2-year suspension. The suspension is administrative — it operates independently of any criminal conviction and can be imposed even if the criminal DUI charge is later dismissed or reduced.
Refusal as evidence at trial. The State can introduce the refusal at the criminal trial as evidence of consciousness of guilt. Maryland courts have long held that a defendant’s refusal of the breath test is admissible — the argument being that an innocent person with nothing to hide would have provided a sample. Defense counsel can argue alternative explanations for refusal, but the State gets to make the consciousness-of-guilt argument to the trier of fact.
Loss of certain PBJ and plea bargaining leverage. A refusal makes some prosecutors and judges more resistant to PBJ. The argument is that a driver who refused to cooperate at the stop should not receive the benefit of withholding judgment. This is not a hard rule — PBJ remains available after a refusal in many cases — but it complicates the negotiation. For more, see refusal of breath tests in Maryland.
What Happens If You Take the Test and Fail
For comparison, taking the breath test and registering at or above the per se threshold has its own consequences.
BAC 0.08 to less than 0.15 (first offense). A 180-day administrative suspension under § 16-205.1, with an option to participate in the Ignition Interlock Program instead. The BAC reading is direct evidence in the criminal case.
BAC 0.15 or higher (first offense). A 180-day administrative suspension with a stronger interlock requirement, and a stronger DUI case for the State. PBJ becomes harder at this BAC level.
Whether refusing or testing is “worse” depends on the BAC the driver would likely have registered. A driver who would have blown 0.18 may face a worse criminal case from taking the test than from refusing. A driver who would have blown 0.08 may face a much worse outcome from refusing than from testing. The honest answer is that the right decision at the roadside depends on facts the driver usually does not know in the moment.
The Ignition Interlock Alternative
Maryland’s Ignition Interlock Program offers an alternative to the full administrative suspension for many drivers. Instead of serving the full suspension period without driving privileges, a driver can apply to participate in the program — agreeing to install an ignition interlock device and complying with program rules — in exchange for limited driving privileges throughout the period.
The basic structure:
- First-offense BAC 0.08+ failure: 6-month interlock alternative to the 180-day suspension;
- First-offense BAC 0.15+ failure: 1-year interlock alternative;
- First-offense refusal: 1-year interlock alternative to the 270-day suspension; and
- Subsequent refusal: 2-year interlock alternative.
The Ignition Interlock Program is not automatic — the driver must apply and meet eligibility requirements. It costs money (installation, monthly leasing, removal — typically $600 to $1,500 over the required period). And it carries its own compliance requirements. Failed breath samples during the program can extend the requirement or result in removal from the program. Out-of-state-licensed drivers generally cannot participate in the Maryland Ignition Interlock Program and may not be able to obtain a modified license while the administrative suspension runs against their Maryland driving privilege.
Field Sobriety Tests Are Different from the Breath Test
One common confusion: implied consent under § 16-205.1 applies to the evidentiary breath test, not to field sobriety tests at the roadside. Field sobriety tests (walk-and-turn, one-leg stand, horizontal gaze nystagmus) are voluntary in Maryland. A driver can decline to perform them without triggering the same implied consent penalties.
That said, declining field sobriety tests has its own practical consequences — it gives the officer fewer grounds to dispute, but it also signals lack of cooperation, and an officer who already has probable cause from observation will likely arrest regardless. The decision to perform or decline field sobriety tests is separate from the breath test decision.
Preliminary Breath Test Versus Evidentiary Breath Test
Maryland officers sometimes use a portable preliminary breath test (PBT) at the roadside before deciding whether to arrest. The PBT reading is not admissible in court as evidence of BAC under § 16-205.2 — it is used only to help establish probable cause for arrest. The implied consent law and the administrative consequences attach to the evidentiary breath test administered later at the police station or barracks, not the roadside PBT.
That distinction matters because drivers sometimes refuse the PBT at the roadside thinking they have “refused the breath test” — when in fact the implied consent consequences only attach once they are asked to submit to the evidentiary test after arrest. The officer is required to advise the driver of the consequences of refusing the evidentiary test before administering it (the DR-15 Advice of Rights form).
When Refusing May Make Strategic Sense
There is no universal answer to whether refusal is the right move. The calculation depends on several factors the driver may or may not know at the roadside.
Refusal may be more advantageous when:
- The driver believes the BAC reading would be substantially over the per se threshold (0.15 or higher);
- There is no accident, no injury, no child passenger, and limited other evidence of impairment;
- The driver is willing to accept the lengthier administrative suspension (or the interlock program alternative) in exchange for not handing the State a BAC number; or
- The driver is a CDL holder facing severe career consequences from a documented high BAC.
Refusal may be a poor decision when:
- The driver’s actual BAC is likely below or near the per se threshold;
- Other evidence of impairment is already strong (accident, obvious impairment on video, admissions);
- The driver needs full driving privileges and cannot accept the 270-day administrative suspension; or
- The driver has a prior refusal or DUI on record, where the consequences of a new refusal are severely amplified.
For deeper analysis of the strategic question, see should I take the breathalyzer test in Maryland.
The MVA Per Se Hearing After a Refusal
A driver who refuses (or fails) the breath test has the right to request an administrative hearing before the Office of Administrative Hearings to contest the MVA suspension. The hearing process operates on a strict two-deadline system:
- Request within 10 days of the stop, and the MVA extends your temporary license through the hearing date. Because hearings are typically scheduled 45+ days out, the 10-day window is what protects your right to drive in the interim.
- Request between days 11 and 30, and you still get a hearing — but the temporary license expires after 45 days and the suspension begins before the hearing happens.
- Request after day 30, and the hearing is denied entirely. The suspension takes effect by default.
At the hearing, the issues are limited: whether the officer had reasonable grounds to believe the driver was under the influence, whether the driver was properly advised of implied consent consequences, and whether the refusal actually occurred. A successful defense at the per se hearing can prevent or modify the administrative suspension. For more, see the Maryland DUI MVA per se hearing.
Related Questions
- DUI vs. DWI in Maryland — How the two charges differ and when each gets filed.
- First-offense DUI penalties in Maryland — Jail, license, interlock, and insurance impact.
- Should I take the breathalyzer test in Maryland? — Strategic analysis of the decision.
- Refusal of breath tests in Maryland — How refusal evidence is used at trial.
- The Maryland DUI MVA per se hearing — Contesting the administrative suspension.
The Refusal Decision Has Consequences Either Way — Get Counsel Fast
Whether you took the breath test or refused it, the next 10 days matter most. Request the MVA per se hearing within 10 days and your temporary license is extended through the hearing date. Miss that window and the administrative suspension begins on day 46, regardless of how the criminal case turns out. The criminal case has its own timeline. The earlier the case is evaluated, the more options you have for the Ignition Interlock Program, for challenging the stop, and for negotiating a Probation Before Judgment or charge reduction.
Toll-free: 1-877-566-2408. For the broader picture, see the complete Maryland DUI and DWI guide.
Last updated: May 26, 2026.