Quick answer: Yes — in Maryland a breath-test refusal can be used against you at trial. You can’t be forced to test (Transp. § 16-205.1(b)(1) says a person “may not be compelled”), but under Maryland’s chemical-test evidence law the fact that you refused is admissible, and the prosecutor will argue it shows you knew you were over the limit. A knowing refusal also adds up to 2 more months and $500 if you’re convicted (§ 21-902(g)). So the real question isn’t “can I refuse” — it’s whether refusing helps or hurts, and that turns on what your number would have shown.
I’m David Waranch, and I’ve defended thousands of Maryland DUI and DWI cases — including plenty that started with a refusal.
Can a Breath-Test Refusal Be Used Against You at Trial?
Yes. This is the part people get wrong most often. They picture refusing as leaving the State with nothing — no number, no case. It doesn’t work that way. Maryland’s chemical-test evidence law (Cts. & Jud. Proc. § 10-309) governs how test results and refusals are treated in court, and under Maryland law the fact that you refused is admissible against you. The prosecutor gets to tell the judge or jury you said no, then argue the obvious inference: a sober driver takes the test — you refused because you knew what it would show. Lawyers call it consciousness of guilt. It can be answered, and I answer it in front of juries, but you should walk into the decision knowing it’s coming.
There’s a second, harder edge. Under Transp. § 21-902(g), if you’re convicted of DUI or DWI and the trier of fact finds beyond a reasonable doubt that you knowingly refused a test from the same stop, the court can add up to 2 months and $500 — on top of the DUI sentence. The State must give notice of that allegation before your plea or trial, but when it applies, refusing has raised the ceiling on your punishment.
What the State Loses When You Refuse
Refusing does take something from the prosecution. Maryland runs a BAC “ladder” under Cts. & Jud. Proc. § 10-307: a reading of 0.08 or more makes you “under the influence per se,” so the number alone proves the top charge with no proof of bad driving required. Refuse, and the State has no number for that ladder. It must prove impairment the older, harder way — the officer’s account of your driving, your eyes, your speech, the field sobriety tests. That case can be attacked. A 0.10 on a certified machine mostly can’t.
| Breath or blood alcohol | What it means in court (§ 10-307) |
|---|---|
| 0.05 or less | Presumed not under the influence and not impaired |
| More than 0.05, under 0.07 | No presumption either way; weighed with the other evidence |
| 0.07 to under 0.08 | Prima facie evidence of driving while impaired (DWI) |
| 0.08 or more | Under the influence per se — DUI by the number alone |
Refuse or Blow? Weighing the Evidence Against the Suspension
I won’t hand you a slogan — the honest answer depends on facts you know and I don’t. But here’s the shape of the decision, side by side. The suspension lengths come from Transp. § 16-205.1.
| If you blow | If you refuse | |
|---|---|---|
| The number | State gets your BAC; 0.08+ is a DUI on its own | No BAC — State must prove impairment by observation |
| At trial | The reading is the heart of the case | Refusal is admissible; State argues consciousness of guilt |
| License, 1st offense | 180 days (0.08–0.14) | 270 days |
| License, 2nd offense | up to 270 days (0.15+) | 2 years |
| Extra criminal exposure | None for testing | Up to +2 months and $500 if convicted (§ 21-902(g)) |
Read the license rows against each other. Refusing usually costs more time off the road than blowing — 270 days versus 180 for blowing up to 0.14 — because the legislature built it that way to make refusing unattractive. Refusing tends to make sense only where the reading would have been high enough (well over 0.15) that the number alone would have sunk you, or where the rest of the evidence is thin — no accident, no admissions, decent driving on the video. If you’d have blown near or under 0.08, refusing is the worst of both worlds: you take 270 days to hide a number that would have helped you, and you still face the refusal argument in court.
The costly myth: “If I refuse, they’ve got nothing.” They have plenty. Your refusal is admissible and the prosecutor will argue it shows guilt; a knowing refusal can add up to 2 months and $500 to a conviction; and the refusal alone triggers a 270-day suspension (2 years on a second). Refusing removes one piece of evidence — the number — while adding others. Decide it as a trade-off, not an escape hatch.
How a Defense Lawyer Handles a Refusal Case
A refusal case is not a lost case — it’s a different case, with soft spots the number-based cases don’t have. Here is where I look.
- Were you “fully advised”? Before the suspension can stand, § 16-205.1 requires the officer to have advised you of the specific sanctions for refusing — including ineligibility for a restricted license unless you join the Ignition Interlock Program, and the added § 21-902(g) penalty. “Fully advised” is an element the State must satisfy, not a formality. If the advice was rushed, garbled, incomplete, or never given, there’s a hole in the case.
- The sworn statement is only prima facie proof. The officer’s sworn statement is treated as prima facie evidence that you refused — so the paperwork carries the case, and the paperwork is exactly what gets examined. Whether it says everything the statute required is often where a refusal case is won.
- Was the stop and arrest lawful? Everything downstream depends on reasonable grounds for the stop and the arrest. If those are shaky, the refusal and its consequences can fall with them.
- Did you ask to call a lawyer? Under Sites v. State, 300 Md. 702 (1984), a driver arrested for drunk driving has the right to consult an attorney before deciding whether to test — if the driver asks. The right isn’t offered; you have to say the words. If you asked and were refused, that becomes an issue I can raise.
- Did you take the refusal back? Section 16-205.1(h) says an initial refusal that is properly withdrawn is not a refusal at all. If you said no and then, still in custody and while the test could still be given, clearly changed your mind, you may not have a refusal on the books. Tell me exactly what happened and when.
And the consciousness-of-guilt argument gets answered head-on: people refuse for reasons that have nothing to do with guilt — confusion, fear, bad advice, distrust of roadside machines, a language barrier at 2 a.m. A jury can be walked through that. See more on how I defend Maryland DUI charges and the realistic plea options and PBJ in a Maryland DUI case.
Remember: You’re Fighting Two Cases at Once
The trial is only half of it. A refusal also sets off a separate MVA action that runs on its own clock, and the deadline is short — just 10 days to request the hearing that keeps you driving, with the Ignition Interlock Program the only route to a restricted license after a refusal. That side is a full topic on its own: see how long a Maryland DUI suspension actually lasts and what happens at the MVA per se hearing. For the plain “can I say no” question, start with can you refuse a breathalyzer in Maryland, and see DUI versus DWI in Maryland for how the charges differ.
If You Hold a CDL, the Math Changes
For a commercial driver, a refusal is far more expensive. Under § 16-205.1, refusing disqualifies your commercial license for one year — three years if you were carrying placarded hazardous materials — and for life on a second disqualifying event. That runs alongside the suspension of your ordinary license, not instead of it, and it can end a career built on driving. See Maryland DUI and CDLs, then call me before you decide.
Frequently Asked Questions
Yes. In Maryland the fact that you refused a chemical test is admissible at trial, and the prosecutor can argue it shows consciousness of guilt — that you refused because you knew the result would prove the case. The argument can be answered, but you should expect it to be made.
It depends on the number you would have blown. On the license side refusing usually costs more — 270 days for a first refusal versus 180 days for blowing up to 0.14 — and the refusal is admissible in court. Refusing tends to help only where the reading would have been high enough to prove the case on its own, or where the rest of the evidence is thin.
Not in an ordinary DUI stop. Transp. § 16-205.1(b)(1) says a person may not be compelled to take the test — refusing is your choice, with administrative and evidentiary consequences. The statute carves out a narrow exception for a crash that kills or seriously injures someone, where a test can be required. If someone was hurt, call a lawyer before you decide anything.
Law Offices of David R. Waranch — 301-563-9575 · toll-free 1-877-566-2408. Hablamos Español.
Last updated: August 2026. Statutory references: Md. Code, Transp. §§ 16-205.1, 21-902; Cts. & Jud. Proc. §§ 10-307, 10-309; Sites v. State, 300 Md. 702 (1984). This page is general information about Maryland law, not legal advice, and reading it does not create an attorney-client relationship.