Eighteen people were injured in New York City yesterday after a double-decker tour bus crashed into another tour bus in Times Square.
The driver of the bus, William Dalambert, of Irvington, New Jersey, was arrested for driving under the influence of drugs. Dalambert insisted that a brake failure was the cause of the accident, but according to reports, Dalambert failed on the scene sobriety tests. However, he walked out of his arraignment in Manhattan criminal court after all charges against him were dropped. This is a well publicized example of how a police officer's observations of a motorist's "common law signs of intoxication" can often times be incorrect. Dalambert was released because preliminary toxicology reports came back negative for drugs or alcohol. Which raises the question, should you submit to a breath, urine or blood test after being arrested for DWI or DUI?
The common "word on the street" is that you should always refuse these tests. Why give the police or prosecutor more evidence against you? While this way of thinking may occasionally be true if you know that you will score way over the legal limit, it often times hurts you and your case.
Under NYS law, it is "implied" that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, you will consent to a blood, breath, urine or saliva test to determine your blood alcohol content (BAC). Refusing an officer's proper request to take one of these tests (it is the officer's choice which test) will result in an automatic one year suspension of your driver's license and a $500 fine. This suspension and fine remain despite the outcome of your criminal case. Also, if the officer properly informed you of the consequences of refusing, the prosecutor can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated (the VTL contains a similar legal presumption).
So, while refusing to take the test does not allow the prosecutor to know if your BAC was above the legal limit, they usually infer that it was and they will almost always accept the arresting officer's observations that you exhibited the signs of an intoxicated person. Legally, that officer's observations can be enough to sustain a misdemeanor DWI conviction that carries up to a year in jail. Also, many district attorneys' offices will refuse to negotiate plea deals on refusal cases. So.....is it really so smart to refuse the test? In the case of the Times Square tour bus driver, if he refused to submit to the blood and urine tests, you can be sure that he would be facing charges based solely on the officer's incorrect observations that he "failed" the on the scene sobriety tests and that he exhibited the signs of someone who was impaired by drugs. For Mr. Dalambert, his choice to take the test was life changing. Each case is different. If you have been arrested for DWI and have refused to take a blood, breath or urine test, there are ways that an experienced criminal defense attorney can get your license back, avoid the payment of the fine, prohibit the prosecutor from using the fact that you refused at a trial, and allow you to obtain a conditional license in certain circumstances.