Refused A Breath Test? Get Help From An NYC Criminal Lawyer

New Yorkers are well aware that driving while intoxicated, or DWI, is a crime. It’s also common knowledge that the fines, administrative penalties, and possible jail time for DWI are serious punishments. In many instances, DWI defendants work with an NYC criminal lawyer to fight DWI charges.

Yet, it surprises most New York residents to learn that refusing a breath test is also an offense under state law. And just as people seek legal assistance for DWI charges, you may need an NYC criminal lawyer to fight accusations you refused a breath or other chemical test.

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Basics Of A Breath Test In New York

If you are pulled over for suspicion of drunk driving or stopped at a DWI checkpoint, law enforcement with probable cause will request you take a chemical test. This chemical test is most commonly in the form of a breath test, otherwise known as a breathalyzer, but could also be a saliva, blood, or urine test.

All of these tests measure your blood alcohol concentration (BAC). In New York, police can administer a breath test roadside or back at the police station, but only chemical tests carried out at the station are admissible in court. This means individuals that have a BAC over the legal limit in a roadside test will be tested again after they are arrested.

By measuring your BAC, police are able to determine if you are intoxicated from alcohol. Other chemical tests listed above can also check for the presence of controlled substances in your system. Of course, in New York, a BAC of 0.08% or higher is a DWI. You can refuse the breath test requested by an officer.

Why Is There A Punishment For Refusing A Breath Test?

The police can’t force you to take a breath test, except in very limited circumstances, but refusing a roadside or station test leads to penalties. Why does New York have the right to require drivers to take a breath or other chemical test for alcohol and drugs? Every driver gave implied consent to these tests when they got behind the wheel on New York’s roads.

Deemed constitutional by the New York courts, the implied consent statute is part of New York’s Vehicle and Traffic Law. It’s found in the same article as DWI offenses, generally. In short, this statute states that any driver who takes advantage of New York’s roads provides implied consent to a chemical test for DWI. This implied consent is applicable even if you are ignorant of this statute at the time of refusal.

In New York, the implied consent statute makes it a criminal offense to refuse a chemical test. There are some requirements. A police officer must have probable cause to believe you are under the influence. As well, the chemical test must be administered within two hours of your arrest. You also have the right to take a subsequent chemical test, but only after you have submitted to the officer’s requested chemical test.

What Are The Penalties For Refusing A Breath Test?

Why might you want an NYC criminal lawyer to help with charges for refusing a breath test? The penalties for refusing a breath test are substantial and in addition to any administrative or criminal punishment for conviction of DWI.

The first time you refuse a breath test, the punishment is a one-year suspension of your license. If you refuse a subsequent breath test within five years or have a DWI conviction on your record, then your license can be suspended for a maximum 18 months. Plus, refusing a breath test is punishable by serious fines, including $500 for a first refusal and $750 for a second or third refusal in five years.

Plus, evidence of your refusal to take a chemical test is admissible in court. A police officer and prosecutor can present evidence that you refused the breath test in trying to prove your guilt for DWI. You’ll need to work with an NYC criminal lawyer to keep this evidence out of court during your DWI hearing.

Ask An NYC Criminal Lawyer

Do you have other questions about breath tests or DWI in New York? Pose your questions to the lawyers at one of New York’s top criminal law firms, Greco Neyland Attorneys at Law. Our office is available 24/7 by calling (212)-951-1300.

The information in this blog post (“Post”) is provided for general informational purposes only. This Post may not reflect the current law in your jurisdiction. No information contained in this Post should be construed as legal advice from Greco Neyland Attorneys at Law or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter.

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About The Author

Jeffery Greco

Jeffery Greco is an attorney providing legal services covering Criminal Defense and Criminal Defense: White Collar and Criminal Defense: DUI / DWI. Jeffery Greco, who practices law in New York, New York, was selected to Super Lawyers for 2020 - 2023. This peer designation is awarded only to a select number of accomplished attorneys in each state. The Super Lawyers selection process takes into account peer recognition, professional achievement in legal practice, and other cogent factors. Prior to becoming an attorney, he studied at South Texas College of Law Houston. He graduated in 2004. After passing the bar exam, he was admitted to legal practice in 2005.

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