Should You Refuse a Breathalyzer Test in New York?

One of the more common questions a New York criminal defense attorney is asked at a cocktail party is what to do if stopped for suspicion of driving while intoxicated and the officer wishes to administer a breathalyzer test?  To start, be aware that there are two different types of chemical tests: the portable breath test prior to arrest (the so-called “breathalyzer”) and the chemical test at the precinct after you are arrested.  Whether to voluntarily take the test is a crucial question as it may impact not only the ultimate result of a criminal case if an arrest follows but could impact a defendant’s livelihood and liberty as well should there be a conviction.  The short answer? It depends.


The Penalties for Refusal

On the down side, be aware that a refusal to take a breathalyzer test is a traffic infraction which triggers an automatic one year license suspension and a fine of $500 – and this charge remains even if you are later acquitted of the underlying DUI/DWI charge.  However, even if charged with a DUI/DWI in New York, a request can be made for a conditional license which permits at the very least driving to and from work.  Should you refuse to take the breathalyzer test and your suspension is upheld after a Refusal Hearing scheduled by the DMV is completed, your ability to get a conditional license is lost.  In addition, if you decide to go to trial on your DUI/DWI case, any of the top New York DUI/DWI lawyers should know that your refusal can be told to the jury – which allows for an argument that your refusal to blow is evidence of your consciousness of guilt.  VTL § 1194.

Thoughts on Why You Should Take the Breathalyzer Test

The positives of refusing to take a breathalyzer or chemical test is that you’re not providing the prosecutor with more concrete evidence of your elevated blood alcohol content (BAC).  Of course, the arresting officer can still testify as to your bloodshot eyes, your stinking of alcohol, your erratic driving and behavior and your unsteadiness on your feet to prove that you were, in fact, intoxicated while driving.

In addition, the breathalyzer test is not infallible and can often be challenged successfully in court.  That being said, providing less evidence to prosecutors is a good rule of thumb.  But in a case where you are borderline above the legal BAC limit of .08, the penalties of refusing to take a breathalyzer test – along with the consciousness of guilt evidence/jury charge the refusal will generate – are usually too great to incur.  Challenge a borderline test with a top New York DUI/DWI attorney and you may end up with a low plea or dismissed case – and not be forced to shoulder the significant penalties that come with refusing to take the breathalyzer test.

When You Shouldn’t Take the Test

If you are really, really drunk, however, it may make sense to not take the test.  First, it’s not as if you’ll be able to fully challenge the mechanical BAC results as even if some error was found you would still be far above the allowable .08 limit.  In addition, you may be providing proof that your BAC is over even the .18 limit for the more serious DUI/DWI charge, VTL 1192.2-a, Aggravated Driving While Intoxicated, a misdemeanor punishable by up to a year in jail.  As even more is at stake when one is facing significant jail time, the best choice may be to simply fight it out for a lower deal without the specter of a ridiculously high breathalyzer result working against you.

Hire a Top New York DUI/DWI Attorney

Regardless of what occurs prior to your arrest for a DUI/DWI, it is imperative that you hire one of the best New York DUI/DWI attorneys to help you make the best of your situation.  Not every criminal lawyer handles such cases so it is important you find one with experience in this area.  At the Law Offices of Jeffrey Lichtman we have handled every sort of DUI/DWI case; please consult our website for additional information on DUI/DWI laws and advocacy. Call us at (212) 581-1001 to schedule an appointment to discuss your case today.