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Should you take the breathalyzer?


About a mile from home, you turn left a little faster than you should have. The car jerks. Your head snaps upright.

“I’m good, just a bit farther.”

Then, you see the flashing lights. The siren fills your head. There’s a police officer behind you. She wants you to pull over.

As you wait, window down, cars passing infrequently in the early morning traffic, your palms start to sweat, and your heart starts beating faster. You’ve had a few drinks.  You frantically calculate how many, what time you started and when you last ate.

“What time is it again?”

Finally, the officer approaches the car, “License and registration, sir.”

You fumble for your wallet. You reach across the car to the glove compartment for your registration and insurance card. You thrust your left arm out the window with the documents. “Here you go, Officer.”

“Do you know why I pulled you over?” she asks, hoping to engage you in conversation.

“No, Officer. I really don’t. I’m kinda tired, so maybe it was how I turned back there? Sorry about that. It’s just…”

“How much have you had to drink tonight?”

“Three beers.”

“Can you step out of the car, please?”

At this point, the Officer is going to ask you a series of questions, and how you answer them will help determine the consequences you face for a long time. Will you keep your license to drive? Will your car insurance get cancelled, and how much will it cost you the next time you renew? Will you have to install an interlock ignition device in your car? Will you go to jail? The next couple hours play a critical role in answering these questions. Also, it’s 2 AM, you’ve been drinking, and you haven’t had much interaction with the police before. (It might be time to call a DWI Defense Attorney.)

In New York, police officers use three separate types of tests to gather evidence against suspected drunk drivers. First, they’ll ask the driver to submit to a series of field sobriety tests, like the finger-to-nose test or the one-leg stand test. The officer will use the results of these tests to prove that your ability to operate a motor vehicle was impaired by alcohol, or that you were intoxicated when you were driving your car. Next, the officer will likely request that you submit to a portable breath screening device, which will tell the officer whether your breath is positive or negative for the presence of alcohol. Finally, the officer will request that you submit to a chemical test to determine what your blood alcohol content is. You have a right to refuse any or all of these tests, but refusing either a portable breath screening or a chemical test comes with consequences, and you should know about the consequences, both in criminal court and at the DMV, before you decide what to do.

New York Law does not require that drivers submit to field sobriety tests. There’s no penalty for refusing these tests, although the officer can use your refusal as evidence that you were conscious of guilt. New York Courts have found, however, that the evidence arising out of a refusal to perform field sobriety tests is less convincing than the evidence of a series of failed tests. Unfortunately, officers will not tell you that you have a right to refuse to perform the field sobriety tests, and they don’t have to. Usually, drivers attempt to complete them as best they can, sometimes with disastrous results.

In contrast to the field sobriety tests, New York law does require that you submit to a portable breath screening if you have been involved in an accident or violated the Vehicle and Traffic Law. In most suspected DWI cases, the officer can establish one of these two things, and your refusal to submit to a portable breath screening is a separate violation of the Vehicle and Traffic Law. If you’re convicted of refusing a portable breath screening, it is a traffic infraction and usually results in a fine. If you decide to take the portable breath screening, the officer can only testify whether your breath tested positive or negative for alcohol.

Once you’ve failed the field sobriety tests and your breath has tested positive for alcohol, the officer will place you under arrest for Driving While Intoxicated. She will then give you a series of DWI warnings, and ask that you submit to a chemical test to measure your blood alcohol content, or BAC. Whether you take the chemical test will determine the course of your DWI case and whether you will be able to drive. Even refusing the chemical test has potentially severe consequences, so you will benefit from making a well considered and reasoned decision. Unfortunately, it’s 3:00 A.M., alcohol is using its dirty tricks on your decision making process, and you’ve just been arrested for DWI. You’re on your own, and you’ve never thought about these issues before.

In New York, modern breath test devices use a process known as infrared absorption spectrometry. Although a DWI Defense Attorney can sometimes prevent a test result from coming into evidence because of problems with the breathalyzer documents, most of the time the prosecution can get the test results admitted into evidence. As such, it’s not wise to take the test on the assumption that it will get thrown out on a technicality.

Refusing a chemical test has separate and distinct consequences, even if you are later found NOT GUILTY of DWI! New York drivers have already consented to a chemical test as a condition of getting their license, which is the basis for the additional penalties for refusing these tests. A refusal of a chemical test results in a hearing before a DMV Administrative Law Judge, and that hearing could result in a mandatory license revocation of at least one year, a fine of $500.00, and a Driver Responsibility Assessment of $250.00 per year for three years for a first offense. Before you get your license back, the DMV will want to see an alcohol evaluation or evidence that you have completed alcohol treatment. Repeat offenders face higher fines and longer license revocations. Commercial Drivers also face longer revocations, and could have their ability to drive a commercial vehicle taken away for life!

Although these penalties are severe, they pale in comparison to losing your freedom after a DWI conviction. The results of a chemical test are powerful evidence in the hands of the prosecutor when you’re faced with a DWI charge in court. A high test result is much stronger than the “consciousness of guilt” inference that a court or jury will make from your refusing the chemical test.

As an experienced DWI Defense Attorney, I have some thoughts and opinions on when a person should take a chemical test, and when they should refuse. Unfortunately, there aren’t many cookie-cutter situations, and this article cannot and should not take the place of well reasoned legal advice, specific to your situation, from your DWI Defense Attorney. I’m not your attorney, yet, so I can’t give you legal advice. But, I can give you these general tips in helping you think about the issues.

  1. If you can credibly claim to have consumed enough alcohol to produce a chemical test result of less than 0.08, then TAKE THE TEST! Unfortunately, people usually underestimate how much they drank, and since you’ve been drinking, you’re judgment is probably impaired. Still, if the test result is less than 0.08, the officer might charge only you with Driving While Ability Impaired, which isn’t a criminal offense, or you might avoid any charge at all!
  2. Is the DWI a first offense, and do you need to continue to drive to and from work while your case is pending? If so, TAKE THE TEST! A refusal will render your ineligible for a hardship license, which allows you to drive to and from work only while your DWI case is pending. You will also have to be convicted of some DWI offense to be eligible for a conditional license during your revocation for refusing the chemical test.
  3. Is this DWI a felony (usually because you’ve been convicted of misdemeanor DWI within five years)? If so, REFUSE THE TEST! You’re probably losing your license for a long time anyway, so the DMV suspension doesn’t really matter. Additionally, the refusal hearing at the DMV could help your experienced DWI Defense Attorney to gather evidence of the prosecutor’s case, helping you in criminal court.
  4. Have you been involved in an accident? Is someone seriously injured or dead? If yes, REFUSE THE TEST. The refusal isn’t going to look good, but a test result over .08 BAC will look much worse when you’re in front of a judge or jury. The civil consequences of losing your license take a back seat in every case involving a death, and the vast majority of cases involving serious injury.
  5. In most other situations, REFUSE THE TEST!New York law says that high test results (over 0.18) carry an additional charge of Aggravated Driving While Intoxicated, which carries additional license sanctions and fines. You cannot be charged with Aggravated DWI if you refuse, (unless you have a child under 16 in the vehicle, which you shouldn’t).

If you have questions, or you have been charged with a refusal to submit to a chemical test and have a hearing coming up at the DMV, you need an experienced DWI Defense Attorney at your side! Don’t go it alone, call Jim Vallone! 716-206-0588!

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