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What Happens If You Refuse a Breathalyzer Test in New York State?

The Marble Team

What Happens If You Refuse a Breathalyzer Test in New York State?

DUI
| 5 min
6 minutes

It’s the situation every driver dreads; the wailing sirens, the flashing blue and red lights in your rear-view mirror, and a police officer signaling for you to pull over. The cops might have a good reason for stopping you, like jumping a red light or having a faulty tail-light - but they can also pull you over if they suspect that you’re intoxicated.

If you’re stopped, it’s vital to follow some common-sense steps, like remaining polite and not incriminating yourself. But if the officer wants you to take a breathalyzer test, what are your options? Can you refuse? And if you do so, does it mean you’re automatically guilty of a DWI (driving while intoxicated)?

The answers to those questions might surprise you. Read on for a comprehensive analysis of the subject. We will cover what happens if you refuse a test, the potential penalties, the consequences for out-of-state drivers, and the rare circumstances where a refusal could work in your favor. You’re sure to learn something new.


The Implied Consent Law: What It Means For You

When you apply for a driver’s license in New York, you’re effectively signing up for something called “the Implied Consent Law.” This means that you implicitly agree to all the terms and conditions that come with a driving license - including taking a breathalyzer test when a police officer suspects you of a DWI.

Refusing a breathalyzer test automatically means you can be charged with a civil offense, like a fine and the revocation of your license.


What To Expect When A Breath Sample Is Requested

If you’re pulled over on suspicion of a DWI, the first step is for the officer to explain your rights and the process and then ask you to submit to a breath test. You’re entitled to refuse, but if you do so, there are consequences.

If you take the test and are found to be over the legal limit, the officer can arrest you and take you back to the station for further tests.

The Possible Outcomes Of Failing To Provide A Breath Sample

A refusal to take a breath test is usually a bad idea that may work against you. The test might prove that you’re under the limit or liable to the lesser charge of a DWAI (driving while ability impaired). But, with a refusal, law enforcement may assume that you were over the limit, meaning you might end up facing two charges: a regular DWI and a refusal.

There’s one very limited set of circumstances where refusing a breath test could work in your favor. If you know that you’re way over the limit, you could potentially try to avoid an aggravated DWI charge and instead face the consequences for a regular DWI and refusal. However, that’s a dangerous game to play because the police may be able to determine your BAC in other ways, and then they may throw the book at you.

Regardless, refusing a test could result in a $500 civil penalty and your license being revoked for at least 12 months. Repeat offenders and commercial drivers face even harsher penalties.


What To Expect If You’re From Out Of State

Non-residents who refuse a breathalyzer test in New York are still subject to state law. Your rights and privileges to drive in New York could be withdrawn, and you’ll have to accept the penalties too. Moreover, New York is part of the IDLC (Interstate Driver License Compact), a group of 46 states that share details of any out-of-state driving offenses.

Unless you’re from Georgia, Michigan, Tennessee, or Wisconsin, details of your NY prosecution will be communicated to your home state. Under IDLC rules, you can then be penalized in your home state, assuming there’s a similar offense on the statute book there. Since refusing a breathalyzer test is an offense country-wide, you might face sanctions at home if you’re found guilty in New York.


The Differences Between A Breathalyzer and Chemical Test

Most of us are familiar with the handheld breathalyzer used by the police. This device uses a person's breath to measure their BAC level. Assuming the model used is approved, in working order, and the proper procedures are followed, the test results are admissible in court.

Although the handheld breathalyzer counts as a chemical test, this term is also commonly used to refer to more rigorous tests back at the station. These include a more accurate breathalyzer machine, a blood test (which typically requires a warrant unless the driver consents), and a urine or saliva test (especially where drug usage is suspected).


Possible Defenses For Not Providing A Breath Sample

It’s worth remembering that refusing to provide a breath sample might count against you in court. Judges have vast experience and are wise to every trick in the book. That said, defenses for not providing a breath sample fall into three categories:

  1. Providing a valid reason, such as having a medical condition
  2. Proving that the arresting officer didn’t follow the correct procedures
  3. Protesting that the arresting officer failed to give you sufficient time to contact a lawyer


Why You Should Turn To Legal Representation

Regardless of any fines, the revocation of your license can have a profound effect on your life. Accordingly, it’s worth exploring every option and angle if you’re facing a charge for refusing a breath test.

Ideally, it’s best to seek the advice of a lawyer after you’re pulled over and before you’ve taken the test. An experienced attorney can tell you precisely what to do, protect your legal rights, and ensure you don’t do anything to incriminate yourself. 

Even if you’re already facing charges, a DWI attorney can guide you through the legal process and see if you have any grounds to negotiate a plea bargain. You may not be able to avoid a charge, but you could get it reduced to a wet reckless or reckless driving.


Bottom Line


Wherever you’re at with a DWI charge or refusing a breathalyzer test, solid legal representation can make all the difference. The experienced team at Marble is here for you, and with our track record, we will work hard to ensure the best possible outcome. Make a call now for a free case assessment.

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