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Arrested for DWI – should you take the test?

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Common DUI Questions

One of the most common questions DWI attorneys are asked is “If I’m arrested for a DWI, should I take a Breathalyzer?” The answer depends on a number of factors.

When lawfully arrested for a DWI, pursuant to New York Vehicle and Traffic Law (“VTL”) Section 1194(2), you are deemed to have given consent to a chemical test to determine the “…alcoholic and/or drug content of the blood.” New York State law allows the arresting officer to decide what type of test to administer. The options are blood, breath, urine, and saliva.

Most Common Chemical Test Following Driving Under the Influence Arrest

The most common type of chemical test administered following a DWI arrest is a breath test. This is commonly referred to as a “breathalyzer,” although that is actually a misnomer. The “breathalyzer” is the brand name of one of the first New York State Department of Health approved machines to be used as a chemical testing device. Due to its widespread adoption when breath testing devices were first developed, the name became the colloquial term for any breath testing device, much like how the name “Kleenex” is used synonymously with “tissue.” Technological development led to the adoption of more modern and efficient chemical testing devices, such as the Datamaster and the Intoxilyzer, and, as a result, the use of the Breathalyzer was completely discontinued in New York State.

Although consent for a chemical test is presumed under the VTL, you do have a right to refuse. While refusing to submit to a chemical test can deprive law enforcement of a key piece of evidence in your case – your BAC – there are penalties for refusing that can make it a poor decision under certain circumstances.

Pursuant to VTL 1194, the penalty for refusing to submit to a chemical test is a 1-year revocation of your New York State driver’s license/driving privilege. There is no conditional driving privilege associated with revocation for a chemical test refusal (although you could potentially still receive one in the underlying DWI case if you are convicted of a DWI or DWAI). For many New York State residents, the inability to drive in any capacity for a year is a tremendous burden.

New York State recognizes a due process right in connection with a driver’s license, and therefore you are entitled to notice and a hearing before your license is revoked. The hearing is conducted through the DMV and is presided over by a DMV Administrative Law Judge. At the hearing, law enforcement is required to testify and, through their testimony, prove the following by a preponderance of evidence (lawyer speak for “more likely than not”):

  1. The police officer had reasonable grounds to believe that the defendant had been driving in violation of any subdivision of VTL 1192 (the section that deals with alcohol and drug-related driving offenses).
  2. The police officer made a lawful arrest of the defendant.
  3. The defendant was given sufficient warning, in clear or unequivocal language, prior to the refusal that such refusal to submit to a chemical test or any portion thereof would result in the immediate suspension and subsequent revocation of the defendant’s license or operating privilege whether or not the defendant is found guilty of the charge for which the arrest was made.; and
  4. The defendant did refuse to submit to a chemical test or any portion thereof.

If, after direct testimony and cross-examination by your attorney, the Administrative Law Judge finds that law enforcement has proven each of these 4 elements, your license will be immediately revoked for at least one year.

Therefore, whether you should submit to a chemical test requires a balance of the importance of an NYS driver’s license for the following year against the benefit you may gain from depriving law enforcement of an important piece of evidence. If this is your first offense, there is no motor vehicle accident, you consumed a relatively low amount of alcohol and you need your driver’s license to get to work, you should probably submit to the test and let your attorney negotiate a deal for you. If, on the other hand, you are a repeat offender and are looking at the potential for state prison if convicted of a DWI, the driver’s license is probably less important.

Whatever your circumstances, law enforcement must accommodate a reasonable request to call an attorney before you decide whether to take the test.

McCabe Coleman Ventosa & Patterson, PLLC DWI lawyers are available 24/7, 365 days per year. If you are arrested, ask to speak to an attorney and call us at 845-209-1355.

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