By: Passalacqua & Associates

Can You Refuse a DWI Test in NY, and What Are the Consequences?

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What Happens if You Will Not Submit to a Breathalyzer Test?

In New York, “driving while intoxicated” (or “DWI”) is the term used for driving under the influence of drugs or alcohol. If you’re charged with DWI in the Utica or Syracuse area, it usually means that you failed a DWI test, and you’ll need the advice and services of a Utica or Syracuse DWI attorney.

But what if you refuse to take a DWI test – a urine, blood, or breathalyzer test – when a law enforcement officer requests it? Refusing to test can lead to an arrest, and so if you refuse to take a DWI test, you’re also going to need the help of a Utica or Syracuse DWI lawyer.

When a law enforcement officer in the State of New York believes that a motorist is impaired by alcohol, that motorist may be asked to take a series of field sobriety tests, which is usually followed by a pre-arrest portable breathalyzer test (or “PBT”).

What Does “Implied Consent” Mean in New York?

Although some states do not require a driver to submit to a DWI test prior to an arrest, New York does, sort of. “Implied consent” in New York means that:

  1.  Merely by driving in New York, you have implied your consent to DWI testing.
  2.  A law enforcement officer in this state MAY request it, BUT you DO NOT have to submit to a DWI test, or ANY standardized field sobriety tests.

When a police officer has probable cause to believe a motorist is impaired, that officer may ask the motorist to take a portable breath test with a handheld breathalyzer that measures the driver’s blood alcohol concentration (BAC) level. A 0.08 percent BAC level is the “legal limit.” You do NOT have to submit to this test. There is a simple traffic ticket that you may be issued for refusing to submit to the test (non-moving, zero points).

What Should Drivers Know About “Portable” Breath Tests?

PBT results are less reliable than the chemical DWI tests that use more sophisticated devices, and PBT test results usually cannot be introduced at trial. However, the result of a PBT test can provide a police officer with the probable cause that is legally required to make a DWI arrest.

A motorist who refuses a roadside PBT test prior to an arrest may be charged with a traffic infraction – but not with a criminal offense – whether or not that motorist is eventually arrested for DWI, and the infraction is dealt with separately from any DWI charge.

Nevertheless, a conviction for a refusal to take a roadside PBT test before a DWI arrest may be penalized with costly fines, fees, and surcharges.

What if You Refuse to Test After You’ve Been Arrested?

After a DWI arrest, the police may ask a motorist to take a DWI test with a more sophisticated breathalyzer or to provide a urine or blood sample. The results of these tests are admissible in a DWI proceeding.

After a DWI arrest, a refusal to test is NOT considered a crime. It may trigger an administrative hearing where the DMV may suspend your license for one (1) year, for refusing to submit to a formal breath test.

Additionally, a refusal to test can be offered as evidence against you at a criminal DWI trial. The prosecution can argue that you knew you were driving while intoxicated, and that’s why you refused to take a DWI test.

Can Someone Be Forced to Provide a Blood or Breath Sample?

In most circumstances, the police cannot force you to take a DWI test. However, if you have been involved in a traffic collision where someone was killed or injured, the police may seek an immediate court order or warrant which will allow them to obtain a sample of your blood.

In the Utica or Syracuse area, if you’re charged with DWI, or if you’re charged with a refusal to test – either before or after an arrest – you must be advised and defended by a Utica and Syracuse DWI attorney who will challenge any evidence introduced against you.

Do not enter a guilty plea, and do not attempt to act as your own attorney. Pleading guilty may seem expedient, but pleading guilty to a DWI charge will negatively impact your life for years into the future.

Are There Any Defenses for a Refusal to Test?

There are several valid reasons why someone may refuse to submit to a DWI test, and if you are charged with refusing to test, your Utica and Syracuse DWI lawyer may introduce one of these defenses on your behalf:

  1.  Certain medical conditions may prevent some people from having enough breath to measure their BAC levels. This defense only works, however, if a medical authority acting as an expert witness confirms it with testimony at trial or a written statement.
  2.  Law enforcement officers must use precise, clear language when they explain what will happen to a motorist who refuses to test. Law enforcement officers must also provide precise, clear instructions about how to use the breathalyzer device.

Motorists in this state may consult a lawyer before they agree to a BAC test, and police officers, if necessary, must provide telephone access. Any failure to allow a suspect to speak with a lawyer can be used to attempt t0 obtain a dismissal of the charge. A Utica and Syracuse DWI defense lawyer may also challenge the results of a breathalyzer test by seeking answers to the following questions:

  1.  Was the officer who conducted the test properly trained and credentialed?
  2.  Was the test properly administered?
  3.  Was the breathalyzer device properly maintained and calibrated?

If You Need a DWI Attorney, Choose Passalacqua & Associates

If you are placed under arrest in the Utica or Syracuse area and charged with driving while intoxicated and/or with refusal to test, a lawyer at Passalacqua & Associates will protect your rights and bring your DWI or refusal to test case to its best possible resolution.

Passalacqua & Associates has a proven track record in DWI cases. If you are charged with DWI, now or in the future, our legal team will provide you with an initial case evaluation without any obligation or cost. We represent clients in and near the Utica and Syracuse areas.

Get the help you need with a DWI charge or a refusal to test charge – now or in the future – by calling Passalacqua & Associates at 315-277-3548 as soon as possible after you’ve been arrested or charged with DWI or refusal to test.