If you’re pulled over in New York for a suspected DWI, you’ll likely be asked to submit to blood alcohol content testing. New York is what’s known as an “implied consent state.” That means that if you’re stopped by police while driving, and you’re suspected to be under the influence of alcohol, you consent to submit to testing to determine your blood alcohol content level.
A person who has been detained on a routine DWI stop in New York isn’t required to submit to any type of implied consent blood alcohol content testing at all. That includes standard roadside field sobriety testing consisting of:
The investigating officer might also want the driver to perform roadside blood alcohol testing with a portable breath testing device. There are consequences to refusing any of these tests though. Failure to submit to field sobriety testing can result in confiscation of your driver’s license on the spot, and you can be taken to the local police station for additional testing. Your vehicle will also be towed from the scene of the traffic stop, and you’ll be responsible for the towing and storage fees.
Additional blood alcohol content testing
After being transported to the local police station, you’ll be asked to submit for what’s commonly known as a breathalyzer test. You can refuse to take that test too, but that won’t stop a DWI prosecution. In a trial, your refusal to submit to breathalyzer testing at the police station can be used against you as consciousness of guilt. An automatic driver’s license suspension effectuates too.
Involvement in an accident with personal injuries or a fatality
Not consenting to blood alcohol content testing becomes irrelevant in cases involving personal injury or death. Police can ask a judge to issue a search warrant for your blood to be tested. They’ll get your blood one way or another.
The two cases
Even though you can’t be charged criminally for refusing to submit to blood alcohol testing, two cases will spin off of the DWI arrest. Those are the actual DWI prosecution itself and a refusal hearing before a Department of Motor Vehicles (DMV) hearing officer.
The Report of Refusal
This report will be completed by the arresting officer at the police station after you’ve been taken into custody. The DMV hearing officer must schedule a hearing on the report within 15 days of the date of your refusal. This is a “hard” suspension, and there is no special license or permit that you can obtain to avoid it.
The DMV hearing
The administrative law judge at the DMV refusal hearing will be looking at four fundamental issues. Those are:
Should the administrative law judge find that any one of these issues is answered negatively, your license suspension will be cleared. If he or she finds in the affirmative on all four issues, your license is revoked for a minimum of one year. That’s when a conditional license is going to be needed, but the only way to get that is by pleading guilty or being found guilty in the underlying DWI case. A conditional license might be obtained if you’re admitted to the Drinking Driver Program, but your conditions of driving will be highly restrictive. For those who refuse chemical blood testing after a DUI stop, the only way to get their full license back is after the revocation period passes.
We provide the highest quality of defense in both DWI and refusal hearings in all of New York City’s boroughs. Contact us right away after any DWI arrest.
Todd is a miracle worker who will work tirelessly for you and your family. He is one of the few attorneys i've met - who I earnestly trust to protect me, and who I am happy to refer to our friends and fellow family members. The Spodek Law Group is someone you want on your side, because they will treat you just like family. Todd and his team are available 24/7, and they always answered our calls. Even when we were being irrational, and crazy - they were calm and super helpful. Just call Todd. He gives you a free consultation and is very understanding.- Donna & Robert
85 Broad Street, 30th Floor
New York, NY 10005
35-37 36th St,
Astoria, NY 11106
195 Montague St.
Brooklyn, NY 11201