Can You Refuse a Breathalyzer or Chemical Test in New York State?

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It is illegal to drive in New York state while intoxicated or to drive with a blood alcohol content/concentration (BAC) of 0.08 percent or greater. While the former requires persuasive evidence that the driver was actually impaired by alcohol, the latter does not. The prosecutor simply uses chemical test results to prove the charge. Some people stopped for DWI in New York might consider refusing to take the chemical test – that refusal has legal consequences.

New York DWI Law

New York laws about driving while intoxicated are found in the Vehicle & Traffic Code. Section 1192 of that code makes it illegal to drive while impaired or intoxicated, and also makes it illegal to drive with a BAC of 0.08 percent or higher. This is called a "per se" offense since no further proof is required to prove intoxication or impairment other than the results of a chemical test.

Under the same code section, driving with a BAC of 0.18 is a more serious per se offense of aggravated DWI. Special BAC provisions apply to commercial drivers (generally 0.04 to 0.08 percent) and drivers under 21 (0.02 percent).

Chemical BAC Testing in New York

For prosecutors to charge a person with a per se DWI offense in New York, they need only present evidence of the chemical test that determined the driver's BAC. Unless the defense attorney persuades the trier of fact that the test was flawed or the police failed to follow protocol, proof of the test results are generally enough for a conviction.

The chemical tests used in New York for alcohol are the breathalyzer, the urine analysis test and the blood test. The latter directly tests the level of alcohol in the blood. The breath analysis indirectly measures the driver's BAC by estimating the amount of alcohol on the subject’s breath, and the urine test is also an indirect measurement of blood alcohol concentration achieved through an estimation of alcohol in the urine. A saliva test may also be used to detect the presence of drugs.

Drivers Deemed to Consent

A driver stopped by the police in New York for a suspected DWI offense is usually first asked to get out of the vehicle and undergo sobriety field testing. This involves performing certain movements, like touching a finger to the nose or walking in a straight line, that are designed to determine if the person's balance, coordination or cognitive skills are impaired.

If the police officer believes the driver to be under the influence, they may request that the person take a chemical test, usually a breathalyzer test. It is important for every person driving in New York to realize that they have already agreed to this test. Under Vehicle & Traffic Code Section 1194, by simply operating a motor vehicle in the state, a driver is deemed to consent to a chemical test to determine the alcohol and/or drug content of their blood.

Hearing After Test Refusal

A driver stopped by the police and asked to take a chemical DWI test will face serious consequences if they refuse to do so. The refusal itself is not a crime, but a civil offense. It is in addition to, not instead of, a criminal DWI charge.

A driver refusing a chemical test will have to appear at a refusal hearing before an administrative law judge at the Department of Motor Vehicles office. Since this is not a criminal action, the criminal standard of beyond a reasonable doubt does not apply to the refusal charges. Rather, the standard is clear and convincing evidence.

The issue of whether the driver was intoxicated is not the question before the administrative law judge. The only issue is whether the driver refused to take a chemical test. The driver is not required to testify, but if they do, anything they say can be used against them during the DWI proceedings.

Potential Civil Penalties for Test Refusal

If the driver is found to have refused a chemical test in New York, the DMV administrative law judge can impose a license suspension and a fine. The period of suspension starts at one year for a first refusal. A first refusal also carries a civil fine of $500. Note that these penalties are imposed regardless of whether the person is ultimately convicted of a criminal DWI at a DWI trial.

What about jail time? Since refusal to take a chemical sobriety test is a civil offense, it cannot be punished by a period of incarceration. However, the police can arrest a driver and keep them in custody until the date of the DMV administrative hearing. And evidence of the refusal can be used at the person's criminal DWI trial.

Expanded Penalty Cases

The penalties described above are those applicable to a regular driver the first time they refuse a chemical test. Penalties are greater for second offenses and other particular circumstances. For example, if the driver has refused a prior chemical test, or if the current refusal comes less than five years after a DWI conviction, the license revocation period is 18 months, and the fine is $750. The reapplication fee will be $100.

Commercial drivers have even more at stake. The fine for a first time refusal is $550 for a commercial driver and the license revocation is for 18 months. A refusal within five years of a DWI conviction can lead to a permanent loss of a commercial license.

Special penalties also apply to a driver under the age of 21 years who refuses a chemical test. New York DWI law sets the BAC for a young driver at 0.02 percent under the Zero Tolerance Policy. If a driver under 21 refuses to submit to a chemical test, they will lose their license for one year; a second refusal results in a suspension for one year or until the driver is 21, whichever is longer.

Possible Defenses to Refusal of Test

A driver wishing to fight the civil charge of refusing to take a chemical test has an uphill battle. The evidence will be quite clear as to whether they refused the test or not, and the police officer's testimony is likely to be taken seriously on this point. Still, with the assistance of an experienced criminal defense attorney, it is possible to make a defensive argument at the chemical test refusal hearing.

First, if the police officers failed to follow proper procedure, it may be a defense to the charge. For example, the police are required to advise the driver about the consequences of refusing to take the test. This has to be done in clear language that an ordinary person could understand.

Second, a driver may defend a charge of refusal by establishing that they have a serious medical condition affecting their breathing. For example, someone with serious asthma, chronic obstructive pulmonary disease (COPD) or smokers with emphysema may not be able to take a breathalyzer test. The driver should bring in a medical professional to testify about their condition.

Drivers in New York have the right to consult with an attorney before taking a BAC test. The police must give the driver access to a phone and time to call the attorney. If they don't allow the driver to make the call, the driver can ask the judge to suppress evidence of refusal to submit to testing.