Test Admissible?

[jc130]

Hello,
I was caught in MD for underage possession (I am 19) at a party.

All of us there were breathalyzed on the spot and were given citations if we blew anything other than a .00. I was looking on the MD's website and found the following (also pasted below): [url]http://michie.lexisnexis.com/maryland/lpext.dll/mdcode/216f9/22bdb/22c7f/22c9e?f=hitlist&q=breath&x=Advanced&opt=&skc=8000000200022C9F&c=curr&gh=1&2.0#LPHit1[/url].

Does this mean that my BAC taken cannot be admitted as evidence in court? Does it matter that what I found is listed under motor vehicle law?

Thank you in advance,
J



§ 16-205.2. Preliminary breath test.
(a) Request by police officer.- A police officer who has reasonable grounds to believe that an individual is or has been driving or attempting to drive a motor vehicle while under the influence of alcohol or while impaired by alcohol may, without making an arrest and prior to the issuance of a citation, request the individual to submit to a preliminary breath test to be administered by the officer using a device approved by the State Toxicologist.

(b) Advice to person to be tested.- The police officer requesting the preliminary breath test shall advise the person to be tested that neither a refusal to take the test nor the taking of the test shall prevent or require a subsequent chemical test pursuant to § 16-205.1 of this subtitle.

(c) Use of results of test.- The results of the preliminary breath test shall be used as a guide for the police officer in deciding whether an arrest should be made and may not be used as evidence by the State in any court action. The results of the preliminary breath test may be used as evidence by a defendant in a court action. The taking of or refusal to submit to a preliminary breath test is not admissible in evidence in any court action. Any evidence pertaining to a preliminary breath test may not be used in a civil action.

(d) Refusal to take test not violation of § 16-205.1; test under § 16-205.1 not affected.- Refusal to submit to a preliminary breath test shall not constitute a violation of § 16-205.1 of this subtitle and the taking of a preliminary breath test shall not relieve the individual of the obligation to take the test required under § 16-205.1 of this subtitle if requested to do so by the police officer.

[FlyingRon]

That statute doesn't have squat to do with your case. It covers people being considered for DUI.

[CdwJava]

The positive test simply shows that you consumed alcohol ... and to consume it, you have to have possessed it.

I suppose you can always challenge the validity of the device and argue that it was not functioning, but if you smelled of alcohol, admitted to drinking, or had been seen within reach of alcohol, you might still be found guilty anyway.

- Carl