If an officer has probable cause to believe a driver was operating a vehicle while intoxicated, New York’s “implied consent” laws require the driver to submit to chemical testing—a blood, breath, urine, or saliva test—for the purpose of determining the amount of alcohol or drugs in the driver’s body. “Implied consent” refers to the implicit agreement that each driver makes by getting behind the wheel to submit to testing when appropriate.
These chemical tests are usually done at the police station following a DWI arrest. The officer gets to decide which test the driver must take. After submitting to the officer’s choice of tests, the driver has the right to arrange for an additional test to be done by a physician of the driver’s choosing.
New York’s implied consent laws also require drivers to submit to pre-arrest “breath tests,” often called “portable breath tests” (PBTs), where there’s probable cause of driving under the influence. PBT devices are handheld machines that measure blood alcohol concentration (BAC) from a driver’s breath. A PBT shows whether there’s alcohol on the driver’s breath, but PBT results are typically less reliable than those of chemical tests conducted at a police station. And PBT results generally can’t be used against a DWI defendant at trial. Refusing to take a PBT—when an officer appropriately requests you do so—is a traffic infraction.
Although it’s often more difficult for the prosecution to prove a DWI without test results showing you were over the legal limit, your refusal can still be used against you in a criminal DWI trial. In other words, the prosecutor can tell the judge or jury deciding your case that you refused testing.
And, regardless of whether you’re convicted of DWI, refusal carries serious consequences. Here are some of the consequences of refusal in New York:
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1st Refusal |
2nd Refusal |
3rd Refusal |
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1-year license suspension |
18-month license suspension with a prior refusal or DWI conviction within the past 5 years |
18-month license suspension with a prior refusal or DWI conviction within the past 5 years |
Your license can be permanently revoked if you refuse testing and within the past four years you’ve had two refusals, two DWI convictions, or one of each.
Generally, your license can’t be suspended for refusing a chemical test unless an officer first warns you what the consequences of refusal will be. In New York, this means the officer must tell you, that if you refuse testing, your license will be suspended regardless of whether or not you’re subsequently convicted of a DWI.
Drivers that refuse chemical testing also face fines. For a first refusal, there’s a fine of $500. The fine is $750 if you refuse chemical testing and you’ve either refused testing or been convicted of a DWI within the last five years.
In most situations, if you refuse to take a chemical test, police can’t make you do so. However, if you’re involved in an accident where someone is seriously injured or killed while you're driving under the influence, refusal might not be an option. In such a circumstance, police can get a court order that allows them to forcible take a sample of your bodily fluids for testing.
If you’ve been arrested for or charged with DWI in New York or any other state, get help from an experienced DWI attorney. With DWI arrests, it’s important that you contact an attorney as soon as possible. Oftentimes, immediate action is necessary to protect your rights. Talk to a DWI attorney in your area to find out how best to proceed with your case.