Quick answer: Maryland’s impaired-driving law is a single statute — Md. Code, Transp. § 21-902 — containing five separate offenses: driving under the influence of alcohol, driving under the influence per se (a 0.08+ reading), driving while impaired by alcohol, driving while impaired by drugs or a drug-and-alcohol combination, and driving while impaired by a controlled dangerous substance. They carry different maximum penalties, and a driver is routinely charged with several of them from a single stop. Your BAC reading doesn’t decide which charge you face — it decides what the State gets to presume under Cts. & Jud. Proc. § 10-307. You can be convicted with no BAC reading at all.
Why One Traffic Stop Produces a Stack of Charges
The single most common thing I hear from a new client is some version of: “I don’t understand what I’m actually charged with.” They’re holding a citation with three or four separate counts on it, all of which sound like the same thing, and none of which the officer explained.
Here’s what’s happening. Maryland doesn’t have one drunk-driving crime. It has one statute containing several distinct crimes, each with a different burden of proof. The State charges the ones it might be able to prove and sorts it out later. Understanding the architecture of § 21-902 is what turns that pile of counts into a case you can actually reason about.
One Statute, Five Offenses
These are the offenses § 21-902 creates, with the statutory maximums for a first conviction. All are criminal misdemeanors under the Maryland Vehicle Law — none is a mere traffic ticket.
| Subsection | Offense | What the State must prove | Max (1st offense) |
|---|---|---|---|
| § 21-902(a)(1)(i) | Driving under the influence of alcohol (DUI) | Substantial impairment by alcohol — no BAC reading required | 1 year / $1,200 |
| § 21-902(a)(1)(ii) | Driving under the influence per se | A BAC of 0.08 or more. That’s it — no impairment evidence needed | 1 year / $1,200 |
| § 21-902(b)(1) | Driving while impaired by alcohol (DWI) | A lesser degree of impairment by alcohol | 2 months / $500 |
| § 21-902(c)(1) | Driving while impaired by drugs, or by drugs and alcohol combined | So impaired that you cannot drive safely | 2 months / $500 |
| § 21-902(d)(1) | Driving while impaired by a controlled dangerous substance | Impairment by a CDS you’re not legally entitled to use | 1 year / $1,200 |
Notice the pattern: the two (a) offenses are the serious ones, and they are alternatives — the State can get there through impairment evidence or through the number on the machine. The (b) offense is the lesser alcohol charge. For a direct comparison of how those two stack up on penalties, points, and interlock, see DUI vs. DWI in Maryland.
What Your BAC Reading Actually Proves
This is where most explanations of Maryland law — including plenty written by lawyers — get it wrong. People describe DWI as “the charge you get for a 0.07,” as though the statute assigned charges by BAC bracket. It doesn’t.
BAC brackets live in a completely different statute: Cts. & Jud. Proc. § 10-307, which is a rule of evidence. It doesn’t tell the State what to charge. It tells the court what it may presume:
- 0.05 or less — it is presumed that you were not under the influence and not impaired.
- More than 0.05, less than 0.07 — no presumption either way. The number goes to the trier of fact alongside all the other evidence.
- 0.07 up to 0.08 — prima facie evidence that you were driving while impaired. Enough, standing alone, to support a DWI.
- 0.08 or more — you are considered under the influence per se. The reading itself is the offense.
There is a separate rule for a different purpose: a reading of 0.02 or more is prima facie evidence of driving with alcohol in your blood, and of violating an alcohol restriction on your license under § 16-113. That’s the provision that matters for drivers under 21 and for anyone whose license carries an alcohol restriction. It sits outside the DUI/DWI ladder above.
Two consequences follow, and they’re the opposite of what most people assume:
A high BAC does not put DWI out of reach. Blowing a 0.14 doesn’t mean DWI is unavailable — it’s routinely where these cases land through negotiation. And a low BAC, or no BAC at all, does not make you safe. If you refuse the breath test, there’s no reading for the State to use — and you can still be convicted of DUI on the officer’s observations, the field sobriety tests, and the video. The presumptions govern what a number proves. They are not the charge.
The Refusal Penalty Most People Have Never Heard Of
Everyone knows refusing the breath test triggers an MVA suspension. Far fewer know that under § 21-902(g), refusal can also add a criminal penalty on top of the sentence: up to 2 additional months in jail or a $500 fine.
It isn’t automatic. It applies only if you’re convicted, and only if the trier of fact finds beyond a reasonable doubt that you knowingly refused. And the statute imposes a real procedural condition: the State’s Attorney must serve notice of the alleged refusal before you plead guilty or nolo contendere — or at least 5 days before trial in District Court (15 days in circuit court), whichever comes first. Miss that notice and the enhancement is off the table. It’s exactly the kind of provision that gets overlooked when nobody is looking for it.
“But I Had a Prescription” Is Not a Defense
Maryland writes this one directly into the statute. Under § 21-902(c)(1)(iv), the fact that you were lawfully entitled to use the drug is not a defense — with one narrow exception: unless you were unaware that the drug would make you incapable of safely driving a vehicle.
That exception is narrower than it sounds. If the bottle carries a drowsiness warning, the “I didn’t know” argument gets very hard to make. A valid prescription for a muscle relaxant, a sleep aid, or an opioid painkiller does not immunize you. This catches people who would never dream of drinking and driving. More on how these cases work in driving under the influence of drugs in Maryland.
A Minor in the Car Changes the Statute You’re Charged Under
Every one of the offenses above has a parallel subsection for transporting a minor, and the escalation is severe. A first-offense DUI with a minor in the vehicle moves from § 21-902(a)(1) to § 21-902(a)(2) — and the maximum jumps from 1 year to 2 years. A first-offense DWI with a minor moves to § 21-902(b)(2), where the maximum jumps from 2 months to 1 year.
This is not a sentencing factor a judge weighs at their discretion. It is a different charge, with a different maximum, and it substantially narrows the realistic outcomes. See DUI with minors in the car.
How Priors Escalate — and Where It Turns Severe
The statute builds a ladder, and the top of it is much higher than most people realize:
- Second DUI — up to 2 years and a $2,400 fine. If it falls within 5 years of the prior, § 21-902(f) imposes a mandatory minimum of 5 days in jail, and the statute states plainly that the penalty is not subject to suspension or probation. The court must also order a comprehensive alcohol abuse assessment.
- Third or subsequent DUI within 5 years — the mandatory minimum rises to 10 days.
- With two prior convictions — § 21-902(h) exposes you to 5 years and a $5,000 fine.
- With three or more priors — § 21-902(i) exposes you to 10 years and a $10,000 fine.
Two things worth flagging. Priors cross-count between the subsections — for subsequent-offender purposes on a DUI, a prior DWI or drug-impairment conviction within the previous 5 years counts as a prior under § 21-902(a)(1)(iv). And under § 21-902(e), an out-of-state or federal conviction counts too, if the same conduct would have violated § 21-902 had it happened here. Drivers who assume an old case in another state is invisible are frequently wrong. See second and subsequent DUI offenses in Maryland.
The Criminal Statute Is Only Half of It
Everything above is the criminal case in District Court. Running alongside it, on its own schedule and under its own rules, is the MVA’s administrative action against your license under § 16-205.1. That case doesn’t wait for the criminal one, and winning in court does not automatically save your license. The window to request the MVA hearing is short — see the Maryland DUI MVA per se hearing.
Related Questions
- DUI vs. DWI in Maryland — what’s the real difference?
- First-offense DUI penalties in Maryland
- Can you refuse a breathalyzer in Maryland?
- DUI plea options and PBJ in Maryland
- Driving under the influence of drugs in Maryland
Frequently Asked Questions
Can I be convicted of DUI in Maryland without a breath test?
Yes. § 21-902(a)(1)(i) makes it an offense to drive under the influence of alcohol, full stop — no BAC reading required. The State proves it through the officer’s observations, your driving, the field sobriety tests, and the dashcam or bodycam footage. Refusing the breath test removes one piece of the State’s evidence; it does not remove the charge.
Is DWI in Maryland only for a BAC between 0.07 and 0.08?
No — this is one of the most persistent myths about Maryland law. The 0.07 figure comes from § 10-307, which says a reading in that range is prima facie evidence of impairment. It is not a charging bracket. DWI can be charged and proven at any BAC, or with none at all, and in practice a great many DWI convictions come from cases that started with much higher readings.
Why does my citation list several charges for one incident?
Because § 21-902 contains several distinct offenses with different burdens of proof, and the State typically charges every one it might be able to prove. You are not being punished five times — you’ll ultimately be sentenced on what the State proves or what you plead to. But you do need to know which count is the one that actually carries the exposure.
Is a Maryland DUI a felony?
No. The § 21-902 offenses are misdemeanors — including the repeat-offender provisions in subsections (h) and (i), which the statute expressly labels misdemeanors even though they carry up to 5 and 10 years respectively. Don’t take comfort in the label: a “misdemeanor” carrying a decade of exposure is not a minor case. Separate felony charges can arise under the Criminal Law Article if someone is killed or seriously injured.
Does a prescription protect me from a drug-DUI charge?
Generally not. § 21-902(c)(1)(iv) states that being lawfully entitled to use the drug is not a defense, unless you were unaware the drug would leave you incapable of driving safely. A warning label on the bottle makes that exception very difficult to rely on.
Do out-of-state DUI convictions count as priors in Maryland?
Yes. Under § 21-902(e), a conviction from another state or a federal jurisdiction counts as a prior if the same conduct would have violated § 21-902 in Maryland. It can push a case into mandatory-minimum territory even though it happened somewhere else entirely.
Charged Under § 21-902? Know Which Count Matters.
I’ve handled thousands of Maryland traffic and impaired-driving cases, and the first thing I do with a new file is exactly what this page does — separate the counts, identify which one carries the real exposure, and find the elements the State has to prove and may not be able to. Whether a case ends in a dismissal, a reduction, or a probation before judgment depends on facts worth looking at early, while there are still options.
Toll-free: 1-877-566-2408. Hablamos Español. Learn how I defend Maryland DUI and DWI charges, or read the complete Maryland DUI & DWI guide.
Last updated: July 2026.