Breath test refusal laws in New York, the basics

If you refuse a breathalyzer in New York, you had better be ready for a punishment.

If police ever arrest you for suspected drunk driving in New York, they will likely ask you to submit to chemical testing of your breath, blood, urine or saliva in order to determine your blood-alcohol-content (BAC). While you are certainly free to refuse this testing, you must realize that you may face stiff penalties for doing so, including a license revocation.

Specifically, these possible penalties stem from New York's implied consent statute, which states that you are deemed under to law to have already given consent to alcohol testing during a DWI/DUI arrest because you are driving within the state's borders.

However, police must typically complete these tests within two hours of pulling you over in order for them to be valid. In addition, the law only authorizes these tests when a preliminary breath test (PBT) in the field indicates you have consumed alcohol or, alternatively, the police officer has reasonable grounds to believe you were driving while intoxicated or impaired by drugs - such as when you fail field sobriety tests or smell of alcohol.

What are the penalties for refusing testing?

If you do not want to take an alcohol test, police typically can force you, although a refusal does carry a significant civil punishment, which is in addition to any criminal penalties you may face if ultimately convicted of the underlying DWI/DUI charge. For instance, the punishment for a refusal includes:

  • First-time offender: A DMV revocation of your license for one year and a $500 fine if it is your first offense
  • Repeat offender: A DMV revocation of your license for 18 months and a $750 fine if, within the previous five years, you have another refusal or DWI/DUI on your record

Deciding whether to refuse a breathalyzer - or any other chemical testing - following a DWI/DUI arrest is a difficult choice. If you take a test and fail, you will likely be convicted of drunk driving. On the other hand, if you refuse, you may limit the evidence against you but you will be punished anyway - not to mention you can still be charged and criminally convicted of drunk driving even without a conclusive BAC test. In fact, under New York law, your refusal to submit to testing can be used as evidence against you in DWI/DUI criminal proceedings.

Should I contact a lawyer?

If you have been charged with a wrongful refusal, you can request an administrative hearing in order to challenge and review your license revocation, including whether or not the arresting officer actually had reasonable grounds to believe you were drinking in the first place. However, navigating these procedures can be difficult without legal guidance, especially if you are also dealing with criminal DWI/DUI proceedings. An experienced attorney can guide you through this process and help ensure your rights are protected. Contact a lawyer today.