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When it comes to refusing a breathalyzer test in New York, many drivers are not aware of the rules.

In New York, if you have a valid driver’s license issued by the state, you are automatically subject to New York’s implied consent laws. This means that you are legally required to submit to a chemical test (which may include a breathalyzer test, blood test, saliva test, or urine test) if a law enforcement officer suspects that you have been driving while intoxicated.

Police officers in New York State have the right to choose which test they would like to administer, once they have made an initial traffic stop, but they usually must do so within two hours of your operation of the motor vehicle. If law enforcement discovers that your blood-alcohol concentration (BAC) is above the legal limit, they would have probable cause to arrest you for a DWI offense.

Many drivers believe that they have the absolute right to refuse a chemical test in New York. While a driver in New York State may refuse to comply with standard field sobriety testing (which may include the one leg stand and the walk and turn), it is important to understand that by refusing to submit to a chemical test there are negative consequences. In fact in some cases, the penalties associated with refusing a breathalyzer test can be more severe than those associated with a low breathalyzer reading.

In New York State, anyone who refuses a chemical test for the first time will have their driver’s license automatically suspended for a period of one year. Offenders will also be forced to pay a $500 fine for violating the New York State’s implied consent law. For a second or subsequent refusal, the driver’s license will be suspended for eighteen months and will have to pay a $750 fine. This is also applicable to drivers who refuse a chemical test for the first time, but have been convicted of DWI within the previous five years. In addition, an arrest for driving while intoxicated based upon the police officer’s observations is almost a certainty.  If the case is eventually moved to trial, the prosecution may introduce the refusal to take the test as evidence of the defendant’s guilt.

For these reasons refusing a breathalyzer test may not be in your best interests, even if you think or know that your blood-alcohol concentration is over the legal limit and you are at risk for being charged with driving under the influence.

If you or someone you know is charged with driving under the influence of alcohol or drugs please contact Robert S. Gershon, Attorney at Law,  to guide you through the legal process.