The DWI Breathalyzer, Submit or Refuse? That is the question.

The question most asked whenever I tell someone I do criminal defense work is: “If I ever get pulled over for drinking while driving should I submit to the breathalyzer test?“

Unfortunately, there is no easy black and white answer to this question as even the penalties for refusal are dependent upon several factors.

In New York State if a person refuses to submit to a DWI Breathalyzer or blood test for the first time, (note: five years between refusals is considered the first time), the refusal can be used against that person at trial as “consciousness of guilt” evidence.  Also, the refusal is a civil violation completely separate from the criminal DWI charge.  As such, the person faces a proceeding before a DMV Law Judge and this proceeding usually results in a license revocation (1 year, could be 18 months for a person with a CDL) and fines (typically $500) and the DMV driver responsibility assessment fee of $250 a year for three years.

If a person has previously refused to submit to a test in the last five years and they refuse again, the result is a license revocation for 18 months or a 10 year revocation if they have a CDL and fines (typically $750) and the DMV driver responsibility assessment fee of $250 a year for three years. Also, the NYS DMV will require an alcohol evaluation and/or complete a rehabilitation program before restoring driving privileges.

The process can be difficult to understand, because a test refusal commences a civil penalty before the DMV Law Judge, while the accused still faces the criminal charges separate and apart from the civil charges.  This means a person who refuses to submit can end up having their license revoked for longer than one year because the suspension periods for both civil and criminal convictions may not completely overlap.

In answer to the original question of whether or not to submit to the DWI Breathalyzer, I always ask the person can they live without their license for a year?  Because, there is no conditional license for a refusal. Frankly speaking, there are two situations when a person should consider refusing to submit to testing. The first is, whether the DWI charge will be a felony? and the second is, was there an accident that resulted in a serious injury?

In New York a serious injury is one that results in:

• Death
• Dismemberment of any kind
• Significant disfigurement
• Any Fracture
• The loss of a fetus
• Permanent loss of use of a body organ, member, function or system
• Permanent consequential limitation of a body organ or member
• Significant limitation of use of a body function or system
• Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident.

If you have been charged with any NYS VTL 1192 offense, you need good legal representation to explain your options and protect your rights. Call my office to schedule a free confidential consultation.