George F. Hildebrandt
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Implied Consent Law: Can I Refuse to Submit to a Breathalyzer?

As much as we take driving car for granted, driving in the State of New York is considered a privilege,not a right. The state can thus choose to place certain conditions on your privileges. For example, the Implied Consent Law states that any person who operates a motor vehicle in the state shall be deemed to have given consent to chemical tests that determine that individual's blood alcohol content (BAC) if an officer suspects he or she is driving under the influence (DWI/DUI).

What is the Scope of Implied Consent?

If an officer lawfully arrests or has probable cause to suspect an individual is driving under the influence, New York law requires that individual to submit to a chemical test to determine their level of intoxication. A chemical test includes a blood, breath, urine, or saliva analysis to determine BAC. The officer has the discretion to choose which test to impose and the test is supposed to be performed within two hours from the time of arrest or a positive breath screening test. An officer should, but does not have to, warn you of the consequences of refusing to submit to chemical testing.

It is important to note that this law does NOT apply to other non-chemical tests, including standard field sobriety testing. This type of testing includes standing on one leg, walking a straight line, and touching your nose with your eyes closed. The law does not require you to perform this type of testing, nor do you consent to it by possessing a valid New York Driver's License or otherwise driving in the state.

What Happens if I Refuse to Submit?

The first time you are found to have refused to submit to a chemical test, your driver's license will be revoked for one year and you will receive a $500 civil penalty, in additoin to having to pay a driving responsibility assessment of $750. Those sanctions are separate and apart from any sentence you would receive if convicted for an alcohol-related driving offense. The civil sanctions for a "repeat offense" - which include a prior refusal or alcohol-related driving offense within the past five years- include license revocation for at least 18 monthsand a $750 civil penalty.

Should I Refuse?

It is important to remember that refusing to submit to chemical testing is an entirely separate issue from whether or not you can be convicted of a DWI. The question of whether there was an improper refusal to submit to the test is a distinct issue that will be taken up at a DMV hearing.

While refusing to submit hinders the prosecution's ability to prove your BAC at the time of the offense, refusal also potentially affects your driving privileges in the state. Additionally, if you are charged with DWI, evidence that you refused to submit to testing can be used against you in your criminal trial.

If you have been arrested for a DWI or you refused to submit to a chemical test, it is important to get help from a DWI attorney with over thirty years experience.Contact me today to help you develop a strategy to defend against the issues presented by these chemical tests, whether or not you submitted to one. A failed Breathalyzer test isn't the end of the road.

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