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DUI / DWI: Refusal of Breathalyzer Test

Long Island Drunk Driving Defense Lawyers

Our Long Island DWI Lawyer Explains, “What Happens if I Refuse a Breathalyzer Test?”

As is true in every state, New York law prohibits operation of a motor vehicle if you are drunk or impaired by other substances. See N.Y. Veh. & Traf. Law § 1192. One test that law enforcement can use to determine sobriety is the so-called breathalyzer test. In general, New York law enforcement cannot force you to take a breathalyzer test or any other test for impairment like blood or saliva without a court warrant.

Consequently, you can refuse “to blow” as they say. However, there are many consequences should you get pulled over for drunk driving. Our trusted Long Island DWI Lawyer explains what you need to know should you refuse a field sobriety test.

 Suspension or Revocation of Your Driver’s License

If you refuse to take the breathalyzer test, your license will be suspended for a year (even if you are not convicted of DWI). The legal theory here is something called “implied consent.” Your driver’s license is not a “right” per se and, therefore, the State can attach conditions to giving you your license. One such condition is your implied agreement to take a breathalyzer test if you are pulled over by law enforcement on the suspicion of driving while intoxicated.

If you refuse to take a breathalyzer test a second time (within five years of the first or within five years of a DWI conviction), then your license will be suspended 18 months. Same for a third refusal. New York law enforcement keeps records of every time you are pulled over or stopped by the police. So, law enforcement knows whether you have refused in the past.

Your third refusal can result in the permanent loss of your driver’s license if, within the previous four years you have had two refusals, two DWI convictions, or one of each.

As a DWI Lawyer, we encourage you to  know your DWI rights. The police officer must tell you that, if you refuse the breathalyzer, your license will be suspended even if you are not convicted of DWI.

You Will Pay Fines if You Refuse to Take A Breathalyzer Test

Drivers who refuse to take the breathalyzer test will be fined, even if they are not convicted of DWI. For your first refusal, you will be fined $500. For your second refusal, the fine increases to $750.

Refusing to Take the Breathalyzer Test Will Not Prevent Arrest, Lock-up, Trial or Conviction

Refusing to take the breathalyzer test will not prevent you from being arrested and taken to lock-up.

The State’s Attorney may still decide to charge you with DWI even without the breathalyzer test result. It is more difficult for the prosecution to win, but the test is not the only evidence available. For example, the arresting officer can testify in court that he or she smelled alcohol on your breath or that your speech was slurred or that you failed the field sobriety tests, like walking a straight line. Even if there is no technical field sobriety test, your general inability to walk is evidence of impairment. Likewise, the arresting officer can testify about your erratic driving and/or about any other indicia of impairment. Furthermore, there might be credit/debit card receipts from the bar/restaurant, there might be other witnesses, etc. Finally, your refusal to take the breathalyzer can be admitted into evidence at your criminal DWI trial. As an example, recently in the news, a Glen Head man was found guilty of DWI despite refusing a breath test.  According to the news report, the evidence was:

  • Driving 60 miles an hour in a 30 miles zone
  • Swerving over the double yellow line into oncoming traffic lanes
  • Swaying while standing
  • Strong smell of alcohol on his breath
  • Glassy eyes
  • Slurred speech

The man is reportedly facing jail time of one to two years.

As can be seen, refusing to take the breathalyzer test has serious consequences in and of itself and also does not avoid DWI arrest, trial and possible criminal conviction.

What Should You Do If You Are Arrested for a DUI or DWI in Long Island?

It goes without saying that you should not drink and drive. Not getting behind the wheel is the safest and easiest way to avoid license suspension, fines, and convictions. But, if you find yourself pulled over, arrested and charged, as soon as you can, you should get help from an experienced Nassau County DWI attorney like those at 888-DUI-Lawyer. As with all arrests, immediate action is necessary to protect your rights. Likewise, after being pulled over, be careful what you say to the police officers. What you say can and will be used against you at your trial. Know what mistakes to avoid after being pulled over for driving under the influence.

Contact a Long Island Drunk Driving Defense Lawyers at 888-DUI-Lawyer Immediately

If you or a family member have been involved in a DWI traffic stop, contact the Long Island drunk driving defense lawyers at 888-DUI-Lawyer for a free, no-obligation consultation. DUI/DWI arrests are complicated; don’t risk your future. Our trusted DUI attorneys can help and are available 24/7.




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