New York State Criminal Defense Attorneys

Increased DWI Chemical Test Refusals and Implied Consent in New York

by Seth Azria on 7/06/2015

More New York Drivers are Refusing the DWI Chemical Test  

Yet another interesting trend that I have observed developing, which I view as being very dangerous, is the fact that an increasing number of people stopped for DWI are refusing to take the chemical breath test at the police station. Indeed, in the last month I have had four or five clients who did not consent to the test, and all of them are regretting their decision.

There used to be reasons why an attorney might say to a client, “It would behoove you to not take the breath test”—i.e., if the client was going to be charged with a felony or if they had been in an accident, particularly if injuries were involved. In such cases, we would want to make the DA prove their case without the breath test result, because they could only charge the client with a common law offense without the .08 BAC result available to them.

These days, however, I think that it is a monumentally bad idea to not take the chemical breath test.

There are a few reasons for this. First and foremost is the fact that any driver found to have refused to take a chemical breath test faces both criminal and civil penalties. If a driver refuses to consent to a chemical breath test, that driver will be scheduled for a refusal hearing before a NYS DMV Administrative Law Judge. If, after the hearing, it is concluded that the driver refused to submit to a validly request for a breath sample, that driver will lose driving privileges for one year, regardless of what the disposition is with regard to the underlying DWI charges. Further, there is a $500 fine assessed for refusing a chemical test.

There are situations where the defendant’s DWI related charges are dismissed, or the driver is found not guilty after trial, yet they still will have no driving privileges for one year, solely based upon the refusal. It is important to note that a chemical test refusal also counts as a previous conviction under New York law for the purposes of penalty calculations. In other words, it is as if the refusal conviction was a conviction. That means if a driver has been found to have refused a chemical test and is then arrested for a new DWI, the refusal conviction will act as a prior alcohol related offense, thus placing the driver at risk of enhanced charges and penalties.

Implied Consent Law and the DWI Chemical Test

New York State has an implied consent law. When you signed the application and subsequent forms for your driver’s license, you consented to comply with a lawful request to take the chemical/breath tests—although many young people are who sign up for their license are so excited that they have no idea what they are signing up for. Simply stated, when you get a driver’s license in New York you have already said in effect, “I will take a chemical test should you ask;” and you need to understand that driving is a privilege and not a right, so it can be taken away.

Unfortunately, the law in this area is often misunderstood. In fact, in Central New York, where I practice, a prominent DWI law firm has been advertising heavily on the radio, and some of their past advertisements make it seem like it may be a good idea for a driver to refuse to submit to chemical testing in the wake of a DWI arrest. I have had three clients in the past few months that told me that they refused to take the test because of this ad. What they do not understand is that refusing to submit to chemical testing is completely unrelated to what happens to the underlying charges in their case; and that they are going to lose their license for one year simply for refusing testing unless they win the refusal hearing—and that is a very hard thing to do because the burden in these cases is simply a preponderance of the evidence; the case against you does not have to be proved beyond a reasonable doubt.

Article adapted from partner David C. Bruffett's chapter in "Inside the Minds: Strategies for Defending DWI Cases in New York, 2015 ed. published by Aspatore Books, A Thomson Reuters business. 




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The criminal defense lawyers at Azria & Bruffett defend individuals from charges in Onondaga county, central and western New York State. Prior results do not guarantee a similar outcome. The information on this site is not legal advice, it is Attorney Advertising intended to educate potential clients about their need for legal advice and assist them in obtaining a lawyer appropriate for those needs. Use of this site does not create an attorney-client relationship. Every case is different and every person should consult a lawyer to asses their particular case.  If you think this office can assist you please contact us for a free consultation