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New York DWI/DUI: Refusal to Take a Blood, Breath or Urine Test

In New York, if you get pulled over for a DWI (driving while intoxicated) and the officer asks you to take a blood, breath, urine or saliva test, do you have to take one? What happens if you refuse?

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Implied Consent

New York law requires you to take a blood, breath, urine, or saliva test if you are arrested for a DWI. New York’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your blood, breath, urine or saliva for the purpose of determining your blood alcohol content (BAC).  The officer gets to choose which test you take and the test must be taken within two hours from when you were last driving. You have the right to have additional tests taken by a medical professional of your choice only if you first submit to the test requested by the officer.  

You could be asked to take a test even before you have been arrested. If you have been involved in an accident, then an officer can ask you to take a breath test. If the results show that your BAC is above the legal limit (.08%), then the officer will ask you to take an additional chemical test. It will not work in your favor to refuse the preliminary breath test. If the officer has any other reason to believe that you have been driving while intoxicated, then he or she can still arrest you and ask you to take a chemical test, which you cannot refuse without penalty.

You can read New York’s implied consent law in the New York Vehicle and Traffic Law 1194.

Refusing to Take the Test


1st Offense

2d offense

3rd Offense

Refusal to take test

1 year license suspension

18 month license suspension

18 month license suspension

Once you are arrested, or after you have taken a preliminary breath test, the officer should tell you that you will lose your license if you refuse to take a test. Although New York law does not require the officer to tell you, you will also have to pay a fine for refusing a test. For your first refusal, your license will be suspended for one year and you will owe the state $500. For your second and any subsequent refusal, or if this is your first refusal but you also have been convicted of a DWI within the last five years, your license will be suspended for 18 months and the fine is for $750.

In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, if the incident that caused you to be arrested also caused injury or death to another person, and you refuse to take a test, then an officer can get a court order that requires you to take a blood test. If you think it might buy you time to refuse a test in this situation, think again. It’s relatively easy for a police officer to get a court order. The officer needs only to get a judge on the phone and swear that he or she has a good reason for the order.

The penalties for refusing to submit to a chemical test are found in the New York Vehicle and Traffic Law 1194.

Should You Refuse to Take a Mandatory DWI Test in New York?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DWI in New York, you face jail time for up to a year, or a fine up to $1,000, or both. You would have to install an ignition interlock device on your car, too. These consequences are more severe than those for refusing a chemical test. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DWI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DWI.

Get Help With Your DWI

If you have been arrested on a DWI charge in New York or any other state, get help from an experienced DWI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DWI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DWI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

Additional New York DUI Information

The links below provide in-depth information surround DUI laws in NY.

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