George F. Hildebrandt
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Can you refuse to take a breath test in New York?

When police pull you over on suspicion of drunk driving, they will make a judgment on your impairment to justify an arrest. They may ask you to take a breathalyzer test at the scene or a chemical test at the station.

What should you do? Can you say no? If so, is it wise to refuse?

What is New York law on breath tests?

Like most states, New York has an implied consent law that means having a driver's license implies your agreement to take a chemical test. Therefore, if you refuse, you will face penalties. You will have to pay a $500 fine and give up your license for a year. Commercial drivers have to pay $550 and go without a license for 18 months, hurting their livelihood.

Some attorneys will advise you to agree to take the test to avoid the automatic license suspension, which can be longer than the suspension for a first DWI conviction and counts separately. Also, multiple defenses exist to cast doubt on the reliability of the test or the legality of the arrest in the first place. Others warn against taking a chemical test to prevent giving solid evidence to the prosecution. The choice ultimately is yours. Either way, what matters most is what you do after taking or refusing a breath test. 

Why does license retention matter most?

Upon arrest, you will lose your license until your case goes to court. If the court finds you guilty of DUI regardless of the breath test, you will lose your license. As all routes can lead to no more driving privileges, it is imperative that you respond quickly and appropriately to try to retain them, because not being able to drive affects numerous areas of your life. The best way is to have a strong legal defense during the proceedings to avoid the conviction. However, even with it, you can seek a limited license so you can at least get to and from work to stay employed.

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