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Consenting to the Breath Test in NY: Should I or Shouldn't I?

It’s been a long night of partying; you’ve had your fair share of drinks but decide you are good to drive home. You get in your car to drive, and you see the dreaded sirens in your rear view mirror. The police officer pulls you over and after conducting a field test (which you fail miserably), asks you to submit to a breathalyzer test. What do you do? You want to say NO, but should you? Or better yet, imagine the same situation, except you are involved in an accident? Do you blow? Now imagine, the person involved in the accident is hurt bad, or even worse, dead? Do you blow now? What if you just had one or two drinks and feel fine? The factual scenarios are endless, but the answer to the question of whether to blow or not can have dire repercussions that determine how this situation affects your criminal case.

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No one wants to be involved in a situation like this, but it’s important to be ahead of the curve, and know what to do if you are, whether you are the one who’s had one or two drinks, or the one who’s been involved in a bad motor vehicle accident. First, let’s distinguish between a field test, a breath test and a chemical test. In NY, a field test is what you expect it to be (walk-and-turn test, one leg stand, horizontal gaze, etc.). Distinguishing between a “Breath Test” and a “Chemical Test” is where it gets hazy. A “Breath Test” refers to a preliminary breath screening, usually with the help of a device called an Alco-Sensor. This is NOT a chemical test and should not be mistaken for a breathalyzer. A “Chemical Test” refers to the alcohol or drug content of a DWI/DUI suspects breath, blood, or urine. This is normally done with the help of an instrument (ex: Breathalyzer; DataMaster; Intoxilyzer; Alcotest, etc.)

Now here’s what you need to know. There is no requirement that a DWI suspect must submit to field sobriety tests. See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150 (1984). It’s important to note that if you do refuse to conduct a field test, it can be used against you in trial, and there is no requirement that the police warn you of your right of refusal.

There is no obligation that you agree to take a “Breath Test,” however, if you get into an accident, or violate the traffic law you are obligated to submit to a “Breath Test.” The refusal to submit to a breath screening test is a traffic infraction on its own. So keep in mind, a valid arrest is necessary for the imposition of a “Breath Test.”

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Now, let’s get to the interesting one of the three possible tests; the “Chemical Test.” Overall, a lawful arrest, or a positive result for a “Breath Test,” is a prerequisite to a valid request to submit to a chemical test. In New York, there are two consequences for refusing to submit to a “Chemical Test”. First, the refusal generally can be used against the defendant in a prosecution. Second, the refusal is a civil violation, which means that it is wholly independent of the charge in criminal Court. The civil violation results in proceedings before a DMV Administrative Law Judge ("ALJ"), and results in both a driver's license revocation of at least one (1) year with NO ability to get a conditional license and a civil penalty.

So now that we have some background we must ask ourselves, do I consent to the test or refuse?

The answer is not always crystal clear as each case is its own unique set of facts and circumstances; however the precedent in the law suggests your rights are best protected based on the following:

Potential for Less than .08 BAC: generally, TAKE the Test.

Potential Misdemeanor DWI charge; needs to drive to earn a living: generally, TAKE the Test.

Accident with serious injury: generally, REFUSE the Test.

Potential Felony DWI charge: generally, REFUSE the Test.

There is always one consistent piece of advice that all persons under suspicion of DWI can adhere to: before consenting to the chemical test of your breath or blood you have a right to request the opportunity to contact your attorney. This cannot be counted as a refusal so long as there is no danger to the officer and a phone is available. Given that each case is different speaking to an experienced criminal attorney will always give you the best chance at making the correct choice when it comes to consenting to or refusing the test.

If you, or someone you know, have been charged with a DWI/DUI, it is imperative that you find the right lawyer to handle your case. The Nassau County DWI attorneys at Schalk, Ciaccio and Kahn P.C. are all former prosecutors and have handled thousands of DWI/DUI cases. Our team of trial attorneys know the in’s and out’s of the business. We are available 24 hours a day by phone at 516-858-1266, or you can visit our website for additional information – www.SCKESQ.com

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