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Refusal to take blood test dwi

By Spodek Law Group | February 27, 2017

If you are suspected of operating a motor vehicle while under the influence, you may be asked to take a blood test. Like a breath test, you are under a legal obligation to have blood drawn. In the event that you refuse to take a blood test, an officer could still compel you to take one by getting a warrant from a judge. What are the possible penalties for failing to consent to a blood draw?
You Could Lose Your License for a First Offense
If you refuse to a chemical test for the first time, you will lose your license for up to a year. It is important to point out that an officer must tell you about the consequences for failing to submit to testing before it is given. It is also important to point out that a judge may allow you to get a restricted license even if it is suspended under implied consent laws.
A Longer Suspension Is Forthcoming for Subsequent Refusals
If you have been convicted of DUI in the past five years, you could face a license suspension of up to 18 months for refusing a chemical test. This is true if you have also refused a test at any point during that five year period. In some cases, your license could be permanently revoked if you have multiple suspensions as well as multiple refusals on your record.
You May Also Face a Fine
In addition to a license suspension, a driver who refuses a chemical test is subject to a $500 fine for a first offense. The fine increases to $750 for a second or third refusal if it occurs within five years of the first refusal. Any fine that you pay may be part of a larger financial penalty as you have to pay for legal counsel as well as some fees to get your car back even if you are found not guilty.
Is It Ever a Good Idea to Refuse Chemical Testing?
Although you could face automatic penalties for refusing a chemical test, it may be a good idea to refuse if you have the option. Assuming that there is no court order compelling you to comply, the authorities have one less piece of evidence to use in any legal action taken against you. Typically, a refusal cannot be taken to mean an admission of guilt, which means that it could be enough to create reasonable doubt if you go to trial.
When Can Police Compel You to Take a Test?
In the event that you have been in an accident that has resulted in bodily injury or property damage, a judge will likely provide police with a warrant to take blood. This will determine whether or not you had alcohol or other substances in your system at the time of a crash. However, an attorney may cast doubt on the results of the test or how the test was conducted at trial.
Where Is the Test Taken?
In some cases, you may have blood drawn at the scene of an accident or traffic stop. Typically, the blood will be drawn at a police station or at a hospital. This is because the tests are generally more accurate than the ones that a portable test can give at the scene. Depending on the results of the test, you may either be charged with DUI or allowed to go free based on all the facts in your case.
Refusing to take a blood test could have serious consequences both on your ability to defend yourself in court and after the case is resolved. Therefore, it is important that you talk to an attorney right away if you have been charged with violating implied consent laws, DUI or any other serious traffic offense.
The state of New York conducts drunk-driving checkpoints at random locations. Arrests and convictions from these checkpoints have become so common that many people have a story to tell. Many people think that they can refuse any chemical tests that are requested by the police officer. However, there are real consequences when you refuse a breathalyzer test. It all links back to the implied consent laws that the state uses.
Understanding The Implied Consent Laws
All licensed drivers are subject to the state’s implied consent laws in New York. Should you ever be suspected of driving under the influence of drugs or alcohol, you must submit to a chemical test to prove or disprove the suspicions. These tests can include, urine, saliva, blood, or breath tests. The officer can use whatever testing method they choose. After they make the initial traffic stop, they can choose a test for you to take. By law, you must take the test within two hours of operating the motor vehicle. Anyone who has a blood-alcohol level of .08 percent or greater will be arrested and charged with a DWI.
Many people think that they can simply refuse to take these tests in the state of New York. A person can refuse to comply with standard field sobriety tests, which includes the Horizontal Gaze Nystagmus, Walk and Turn, and One-Leg Stand; however, you cannot refuse a chemical test without facing consequences. New York criminal defense attorneys want people to know about the penalties that come with refusing a breathalyzer test. There are many legal consequences of refusing chemical testing, these can be added to a conviction of DWI.
The Consequences of Refusing Breath Tests
The consequences of refusing to take such tests are expensive. First, your driver’s license is automatically suspended for a one-year period. Next, you are expected to pay a fine of $500 for any violation of the state’s implied consent laws. Lastly, if a person refuses more than one time, each additional infraction comes with an 18-month suspension and a fine of $750. The $750 fine will also apply to anyone that refuses a chemical test for the first time, but they had previous DWI convictions within the last five years. Basically, it is going to cost a bunch of money for not cooperating.
The Penalties Attached To A Refusal
Though these penalties are not as serious as being charged with a DWI, the prosecution will use your non-compliance against you. It is used to help prove your guilt in the matter. The court and another legal team will think that you are refusing because you have something to hide. Because of the ramifications that come along with refusing a breathalyzer test, it is not in your best interests to refuse them. If your blood alcohol level is over the legal limit, and you are afraid you will get in trouble, then it is better to call a New York criminal defense attorney. An attorney can question the validity of the test if you have failed it. Challenging the test will look better for your case than refusing to take it. A lawyer can work with a failed test, but there is little that can be done to defend a refusal.
Having An Attorney To Help Is Vital
A criminal defense attorney from the state of New York will be able to help in these delicate matters. Many people need work privileges to get to work. Since a DWI comes with a mandatory license suspension, it is important to have an attorney working hard on your side. You need a strong legal strategy on your behalf if you want to put this entire situation behind you.
What are the penalties for a DUI conviction?
If you have been convicted of a DUI, you could face many different penalties such as jail time or a loss of driving privileges. In some cases, it could lead to a job loss, strain professional and personal relationships and have a generally negative impact on your finances as well. This is why you should talk an attorney immediately after being charged with driving under the influence.
How Long Could You Go to Jail For?
For a first offense, you could go to jail for a minimum of 24 hours assuming that there were no aggravating factors in the case. Aggravating factors may include an extremely high blood alcohol content, eluding police or taking actions that leave someone dead or injured. In such a scenario, you could be held in jail until you can see a judge. If you can’t make bail, you may have to stay in jail until your trial begins.
How Long Could You Lose Your License For?
A driver who refuses to take a breath test at the scene of a traffic stop will automatically lose his or her license for a period of one year. If convicted of a DUI, an individual could lose his or her license for a period of several months or several years. This would depend on the defendant’s prior record and facts in the case. However, a driver convicted of DUI may be allowed to drive to work, school or to a treatment center on a restricted license.
Drivers May Be Fined as Part of a Sentence for DUI
It is possible that a driver may face a fine after being convicted of drunk driving. A fine may also be forthcoming even if a driver accepts a plea deal that lowers the charge or throws out some or all other penalties. Fines may range from $1,000 to $5,000 or more depending on the facts of the case and a driver’s prior criminal record.
Other Fees May Apply After a Case Has Been Resolved
In addition to paying a fine, a driver may be responsible for lawyer fees and court costs. He or she may also have to pay a fee to get his or her car out of an impound lot and to get his or her drivers license and registration reinstated. Higher insurance premiums may also be a consequence of a DUI conviction. Finally, it may be necessary to pay for an ignition interlock device that prevents a driver from operating a vehicle if he or she has been drinking.
Community Service May Be Required After Being Found Guilty of Impaired Driving
As part of a plea agreement, an individual may be asked to do community service in lieu of jail time or a fine. Community service may involve picking up trash, talking to teenagers about the perils of drunk driving or any other service a court deems appropriate.
It May Be Harder to Find Work After a DUI Conviction
After a conviction for DUI, it may be difficult to find a job or enroll in school. This is because such a conviction will be a part of an individual’s permanent record for many years into the future. Individuals must generally disclose that they have been found guilty of this crime if asked on a job application or college admissions document if asked.
Those who are charged with DUI may face significant penalties if convicted. Even if a plea deal is reached, it could still result in a fine, probation or driving restrictions that may make it difficult to live a normal life. Therefore, it may be worthwhile to work with legal counsel who may be able to create a defense to the charge. This may lead to a full acquittal and the opportunity to have the charge sealed.
What Are Anticoagulants and How Do They Relate to Blood Tests?
An anticoagulant is a substance that prevents blood from clotting. For blood draws, a standard anticoagulant used is 20 milligrams of potassium oxalate. The use of an anticoagulant is crucial with blood draws to check a driver’s blood alcohol content (BAC), because if an anticoagulant isn’t used, a test of the blood will show a much higher BAC.
There are different types of blood tests, which include serum tests, plasma tests and whole blood tests. If the test is being performed to test a driver’s BAC, then a whole blood test is the only method that will provide an accurate result. Here’s why – plasma is blood without the solid, cellular material. This means that there will the same amount of alcohol in the plasma as there was in the blood, but it will be in a smaller volume of liquid, making the BAC artificially higher. Serum is plasma after the removal of the fibrinogen, which is the clotting material. The person drawing the blood lets the sample clot, which causes the serum to form over the blood. The serum will have a BAC that’s similar to the plasma’s BAC, which again is artificially high.
So, let’s say the person performing the blood draw didn’t use an anticoagulant in the tube. That means that the blood will clot, so instead of a whole blood sample, they will have a serum sample. Testing the BAC of this serum sample will show an artificially high reading.
Situations like these are why it’s so important to hire a skilled defense attorney when you’ve been charged with driving under the influence (DUI). While blood draws tend to be the most accurate way to measure BAC, there are many mistakes that can result in inaccurate readings. Your attorney will have extensive knowledge of possible mistakes that could have occurred during the blood draw and can check for them. If the person who performed the blood draw didn’t use an anticoagulant, your attorney can use that in your defense and argue that the evidence presented against you is inaccurate.
There are plenty of other issues that can result in an inaccurate blood draw. Who performed the blood draw? If that person hasn’t received training in how to draw blood, then they may not have drawn a suitable sample. How did they clean the skin before inserting the needle to draw the blood? While isopropyl alcohol is the most common substance used in medical facilities for sterilization before blood draws, this cannot be used for a blood draw to check your BAC. The alcohol on your skin can get into the needle and artificially raise the BAC of your blood sample. If the person drawing your blood used isopropyl alcohol to clean your skin, that can also be used in your defense.
Blood test kits also have expiration dates. Once a blood test kit reaches its expiration date, the contents are no longer under warranty and no longer meet the standard necessary to be used as evidence in the case against you.
Your defense attorney will also look into the chain of custody regarding your blood sample. If the medical facility or lab handled your blood sample correctly, there will be a complete chain of custody showing that your blood sample was stored in a secured refrigerator with a log book. A blood sample that wasn’t stored properly may not be valid as evidence, because the improper storage could have affected it. Any break in the chain of custody can also be part of your defense, as there’s the possibility that the blood sample was switched out or tampered with during that break. A break may not prevent the prosecution from using your blood sample as evidence, but it can weaken their case.
There are many important factors to a blood draw for a DUI case, with one of the most important being whether the blood tube had the correct chemicals, including an anticoagulant. If this or any other proper procedures weren’t followed for your blood draw, it provides you and your attorney with a strong defense to present to the court.

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