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 horizontal gaze nystagmus test
- The walk and turn test
- The one legged stand test
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:
- Whether the arresting officer had a reasonable suspicion that you were driving while intoxicated or under the influence of drugs
- Whether that officer had probable cause for your arrest
- Whether you received a clear and sufficient warning that your driver’s license would be suspended for one year if you refused to submit to blood alcohol testing
- Whether you indeed refused testing
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.