May 17, 2018 |

Consequences of Refusing a New York Breathalyzer Test

You are driving home after having a few drinks with friends. You think you’re okay to drive, but you also think that you may have had one too many and could be over the New York legal limit for blood alcohol content (BAC). And then, the flashing lights appear in your mirror, you’re pulled over, and soon enough the officer starts asking questions about your drinking that night. Having “reasonable grounds” to suspect that you may in fact be driving under the influence, the officer then asks you to submit to a breath test, the results of which could be used to convict you of DWI. You don’t want to give the police the rope they can use to hang you, so you refuse to blow into the Breathalyzer. What happens then?

You’ve Already Given Your “Implied Consent” to a Breath Test

While you can tell the officer that you won’t consent to a test, the reality is that simply by getting behind the wheel on a New York road or highway, you have already given your “implied consent” to submit to blood, breath, or chemical testing to determine your BAC if an officer arrests you for DUI. That is one of the conditions that come with the privilege of driving in the Empire State.

Withdrawing Your Consent = Automatic License Suspension

If you decide to withdraw your implied consent, be prepared for the consequences. Even if you are never convicted of DWI or prosecutors dismiss charges against you, your refusal to take a breath or chemical test is itself a basis for suspending your license and the imposition of hefty fines.  

  • First-time refusal. If you refuse a chemical test and, within the past five years, have not previously lost your driving privileges for a refusal or been convicted of a drunk driving offense, you will face:
    • Revocation of your driver’s license for one year (18 months if you have a CDL);
    • A civil fine of $ 500; and
    • A driver responsibility assessment of $250 a year for three years.
  • Subsequent refusals. If, on the other hand, you have refused a test or been convicted of drunk driving within the prior five years, your refusal will result in:
    • Revocation of your driver’s license for 18 months (at least ten years if you have a CDL);
    • A civil penalty of $750; and
    • A driver responsibility assessment of $250 a year for three years.

In addition to keeping you off the road, a Breathalyzer refusal can also be used against you and is admissible as evidence in any DWI trial. However, your refusal will not be admissible, and cannot be the basis of a criminal conviction, if the officer failed to comply with New York law which requires him or her to give a driver sufficient warning, in clear and unequivocal language, of the effect of such refusal before requesting the test.

Call Epstein & Conroy Today If You Have Been Charged With DWI

If you have lost your driving privileges because of a Breathalyzer refusal and/or have been charged with a New York DWI, your rights and your future are at stake from the moment an officer pulls you over. You need an attorney who is experienced and knows how to challenge every aspect of a DWI arrest and prosecution. Contact the attorneys at Epstein & Conroy by calling (718) 852-6763 for a free consultation to discuss your case.

Hear What Our Clients Have To Say

"Great friend excellent attorney and very professional."