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.
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.”
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