DWI Breathalyzer: Refuse or Not Refuse?

Often in casual conversation with friends or family the question of whether someone should refuse a breathalyzer or not comes up over drinks.  It is a good question with no easy answer.  I have been working DWI cases in some form or another since 2004.  In that time I have seen the law change tremendously with respect to this question.

The simple answer is to not drink and drive at all.  Call an Uber, take a Taxi, a Train, or just put the legs to work and walk.  There are many alternatives, however, until the time comes it is easy to arm chair quarterback others’ decisions.  I would recommend any of the alternatives to driving as there are serious consequences to a DWI arrest and conviction.  It is important to call an attorney as soon after the arrest as possible and tell the Police Officer that you want an attorney.  Your future depends on it.

When it comes to the chemical test, commonly known as the breathalyzer, there are several things to consider.  The choice is yours.  You can take one when requested by police, or you can refuse.  All of the topics and information addressed here are not meant as legal advise or meant to establish an attorney client representation. You must speak with us or another attorney to go over the exact facts and circumstances surrounding your case.  I want to highlight some things in New York Law that you should be aware of.

The consequences of a DWI arrest vary on your level of intoxication.  For instance, if you have a blood alcohol content of less than .08 of one per centum you can be found guilty of Driving While Ability Impaired, which is a traffic infraction and generally carries a suspension of driving privileges for 90 days for first time convictions.  If one refuses a chemical test there is no way to determine your blood alcohol content.  If you display the indicia of intoxication (i.e., fail the standard field sobriety tests, have blood shot watery eyes, speak with slurred speech, etc.) and refuse a chemical test, you can still be charged with 1192(3) common law DWI in New York.  The common law DWI is a misdemeanor for first arrest and a refusal carries a mandatory revocation of at least 12 months for a first time refusal.  If you know that you had a drink, but don’t think you are intoxicated it may be worth while to take the breathalyzer.  Even if you are arrested, the consequences for DWAI with the 90 day suspension is much less than the mandatory one year revocation.  This is all in addition to fees, fines, court costs, and other associated costs.

Now, if you believe that you are completely intoxicated and know that you drank too much, you may want to refuse the breathalyzer.  A chemical test analysis is strong evidence of guilt.  A high alcohol content will make it difficult to litigate a case.  The thing to note though is that every case is not triable.  Each one is different and your lawyer can advise you on different courses of action, but it is you the client that determines how to proceed within the boundaries of the law.

So you should be aware that New York Vehicle and Traffic Law Section 1194 is the governing statute on refusals in New York.  According to the statute the Court will temporarily suspend your license at arraignment and provide you with a refusal hearing date with the New York Department of Motor Vehicles.  At the hearing the issues will be limited to

  1. did the police officer have reasonable grounds to believe that you were driving in violation of any of the subdivisions of Vehicle and Traffic Law Section 1192;
  2. did the police officer make a lawful arrest;
  3. were you given sufficient warning, in clear and unequivocal language, prior to refusing to submit to the chemical test and that such refusal would result in the immediate suspension and subsequent revocation of your driver’s license whether or not your were found guilty; and
  4. that you refused to submit to the chemical test or any portion of the test.

Once the hearing officer determines that all four elements were met, they will revoke your license.  The hearing is not mandatory, but if you waive the hearing your license will be automatically revoked.  Generally, conducting a refusal hearing has pros and cons.  If this is a case that you are trying to fight, conducting a hearing may be good as it will create a record establishing the facts and circumstances surrounding the arrest.  You must consult us or another attorney before making this decision.  It is important to look at the pros and cons on a case by case basis.

In the case of a refusal, New York will revoke your driver’s license for a period of one year minimum for a first time DWI arrest.  Restoration after that one year period is at the discretion of the Commissioner of Motor Vehicles.  In addition you will be required to pay a $500.oo civil penalty for refusing to take a chemical test.  The civil penalty is in addition to mandatory post conviction fines ranging from $500.00–$1,000.00 for a first conviction.  Now compare the minimum one year revocation for refusing to take a chemical test with the 6 month revocation post first DWI conviction.  So the question becomes, is it really worth it to refuse a DWI breathalyzer? Maybe not.  The 6 month revocation is after the plea of guilty to a misdemeanor DWI.  With some work and investigation an experienced attorney, like us, can try and negotiate a DWAI.  This will take you from a 6 month revocation on a first arrest to a 90 day suspension.  With a refusal, even if we can negotiate a DWAI on your behalf, you will still be looking at a minimum of a one year revocation.  With that said I hope you have enough information to make an informed decision and call us to discuss your case!



2 thoughts on “DWI Breathalyzer: Refuse or Not Refuse?

  1. This is really interesting. I like how you discuss both sides, and then weigh the potential consequences of each. From what I understand, it is typically better to just take the test. Is that correct?

    Can you write about field sobriety tests other than the breathalyzer. I am a disabled Vet and I know if a police officer asked me to step out of my car, I’d be screwed, even sober. Should I have written documentation from my doctor on me at all times?

  2. Great post! Very informative. Thanks!

Leave a Reply

Your email address will not be published. Required fields are marked *

search previous next tag category expand menu location phone mail time cart zoom edit close