New York’s Implied Consent Laws: Refusing a DWI Chemical Test

Does New York law require drivers to submit to alcohol and drug testing?

Impaired driving investigations typically involve the officer requesting that the suspect take a breath or blood test. Of course, the purpose of these tests is to determine blood alcohol content (BAC) or the amount of drugs in the suspect's system. This article gives an overview of what New York's "implied consent" law says about DWI chemical testing.

Your Rights as a Driver and DUI Consent Law

New York law generally specifies that any person who operates a vehicle within the state is deemed to have impliedly consented to DWI chemical testing.

Chemical testing. Chemical tests, such as breath, blood, urine, and saliva test, are used by law enforcement to determine the presence and concentration of alcohol and/or drugs in the driver's body. An officer who has reasonable grounds to believe a person was driving impaired within the last two hours can request the driver submit to one or more DWI chemical tests. The test results can be used against the driver in court and thus may lead to a DWI conviction.

Test refusals. Although there are consequences for doing so, drivers can generally refuse to submit to testing. Without a warrant from a judge, an officer cannot physically force a driver to submit to chemical testing.

Underage drivers. The rules are slightly different for drivers who are younger than 21 years old. To request a chemical test from any driver under 21 years old, an officer needs only reasonable cause to believe the driver has consumed some alcohol—not necessarily that the driver is impaired.

Refusal Procedure

If a driver unlawfully refuses to submit to testing, the officer is supposed to inform the DMV of the refusal. The DMV will then schedule a hearing and order that the driver's license be suspended until the hearing is held. A driver may waive the hearing to begin the revocation period early.

Refusal Penalties

Here are some of the possible repercussions of refusing DWI chemical testing in New York.

First offenses. An unlawful refusal will result in a minimum one-year license revocation and $500 civil penalty. The driver must also pay a $250 Driver Responsibility Assessment annual fee for three years and a $100 reinstatement fee.

Second offenses. A refusal is a second offense if the driver has a DWI conviction or prior refusal violation in the last five years. The driver will face a revocation of at least 18 months and a $750 civil penalty. The driver must also pay the Driver Responsibility and reinstatement fees as with a first offense.

Habitual violators. A driver who has three violations (refusal or conviction) in four years or four violations in eight years faces an indefinite revocation. The driver can apply for reinstatement after five years but may be required to complete a rehabilitation program and be subject to other driving restrictions. As with first and second offenses, the driver will still be liable for the reinstatement and Driver Responsibility fees and the $750 civil penalty.

Underage drivers. A driver who's under 21 years old and either refuses testing or tests positive for alcohol will face license revocation of one year (or until 21 years old) and will have to pay a $500 civil penalty and the reinstatement fee.

Talk to an Attorney

If you've been arrested for driving while intoxicated in New York, it's a good idea to talk to a DWI lawyer. DWI law is complicated and the facts of each case are different. A qualified DWI attorney can tell you how the law applies to your case and help you decide on the best course of action.

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