Refusing a DWI Test and Implied Consent in New York

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 What Is New York’s Implied Consent Law?

New York’s implied consent law states that any person who drives or is in physical control of a motor vehicle on public highways is deemed to have given their consent to a chemical test for the purpose of determining the concentration of alcohol or drugs in their blood.

The tests that are given are blood, breath, urine, and saliva tests. They reveal the amount of alcohol or drugs in a person’s body. In the state of New York, by having a driver’s license, a person has consented to chemical testing after they have been arrested on suspicion of driving while intoxicated (DWI).

These chemical tests are usually administered at a police station after a person has been arrested for driving while intoxicated by drugs or alcohol. Once the driver submits to a test, they have a right to take another test that is done by a doctor of the driver’s own choosing.

In addition, the state’s implied consent law also makes it mandatory for drivers to take preliminary “breath tests,” generally referred to as “portable breath tests” (PBTs). These tests are often administered after a person has been pulled over for a DWI stop. The breath test is administered at the scene of a stop when the police have probable cause to arrest the driver for driving while impaired (DWI).

What Does the Term “DWI” Mean?

The legal acronym “DWI,” for driving while intoxicated, is a term used to refer to the criminal offense of driving while impaired by alcohol or drugs in New York. In some states, the term “driving under the influence” (DUI) may be used instead of “DWI.”

There are states in which DUI and DWI are separate criminal offenses where a DUI is an offense related to driving under the influence of drugs or substances, and a DWI is an offense related to driving while intoxicated by alcohol.

In New York, the term “DWI” is used to cover all types of impaired driving, ranging from driving drunk to driving while under the influence of drugs, such as marijuana or other controlled substances. Further, in New York, it does not matter whether the drug is prescribed, illegal, or an over-the-counter medication. If a person takes a substance and it impairs their driving, they may be charged with a DWI.

A DWI charge may become a more serious offense depending on the level of intoxication of the driver, as well as the circumstances surrounding their driving. New York laws are complicated in that a person may be charged with the following offenses:

  • DWI;
  • Underage DWI;
  • Alcohol-DWAI, which is driving while ability impaired by alcohol;
  • Drug-DWAI, driving while ability impaired by drugs,
  • Combination-DWAI, driving while impaired by both alcohol and drugs, and
  • Aggravated DWI.

Again, the charge depends on the results of tests administered at the scene or later, the observations of the arresting officer, as well as the circumstances in which the stop is made.

What Does the Term BAC Mean?

As noted above, the level of a person’s intoxication, also known as their blood alcohol concentration (BAC), is a measure of the concentration of alcohol present in a person’s bloodstream.

When a person is pulled over, authorities often use a breathalyzer test to measure the person’s BAC. They also commonly use field sobriety tests.

New York has a strict zero-tolerance law that prohibits operators of motor vehicles under the age of 21 from having any amount of alcohol in their system. Therefore, even a 0.01% BAC will result in an underage DWI charge for those who meet the criteria for the charge.

It is important to note that the standard legal limit for people over 21 in New York is a BAC level of 0.08%. If a person has a BAC of 0.08% or higher, they are presumed to have been intoxicated and their driving impaired. Any amount over the limit may result in a DWI charge. However, if a person has a BAC of over 0.18%, they may be charged with aggravated DWI.

Many people think chemical test evidence is required to prove they were intoxicated or impaired. However, the testimony of a police officer about the way the person was driving and their appearance and behavior while interacting with the officer when they were stopped can provide enough evidence to convict a person of DWI. This is true even without a chemical test.

What Is Probable Cause?

If a police officer suspects that a person may be operating a vehicle while intoxicated, they must have reasonable suspicion to pull that person over. An officer’s belief that they have reasonable suspicion of a violation≈ must be supported by evidence. This evidence usually includes observations of a person speeding or driving too slowly for conditions or weaving back and forth, either within their lane or across the road.

Other evidence would include the officer actually observing open containers or drug paraphernalia in the vehicle or seeing the driver drinking in their car or using drug paraphernalia.

After establishing the probable cause necessary to pull the driver over, the officer will likely request that the operator of the vehicle step out of the vehicle and submit to a test in order to determine whether or not they are impaired. Examples of the tests that may be administered by an officer at the scene include:

  • Breathalyzer Test: A breathalyzer is a handheld device that measures the concentration of alcohol in a person’s system by having the individual blow into the device. This test may be administered either at the scene by the officer or at a police station;
  • Field Sobriety Tests: Field sobriety tests are commonly administered at the scene. Field sobriety tests involve a variety of different tasks that are designed to test a person’s balance and soberness. Examples of tasks administered by officers include:
    • Touching one’s finger to one’s nose;
    • Reciting the alphabet backward;
    • Walking in a straight line;
    • Standing on one foot while counting.

If a driver fails any of the above tests, the officer then has grounds to arrest them for driving while intoxicated. Additionally, a person could refuse to perform any of the tests that can be administered at the scene. If this is the case, the officer may still arrest the person if they suspect that they are driving while impaired by the ingestion of drugs and/or alcohol.

It is important to note that circumstantial evidence, such as the smell of alcohol on a person’s breath or observation of open containers in the vehicle, can also be used as evidence to arrest the driver for driving while intoxicated.

Blood or urine testing is also an option and often requires a medical professional to conduct the testing and produce lab results. So, these two types of tests are typically administered at the booking facility rather than at the scene.

If I Am Arrested for DWI in New York, Am I Required to Take a Chemical Test?

As noted above, a person may refuse to submit to a breath, blood, urine, or saliva test after they have been arrested for a DWI offense. In this case, their driver’s license is suspended for at least 1 year, and they must pay a fine of $500 for a first refusal. The penalties are more harsh for DWI repeat offenders who refuse a test for a second or subsequent time.

What Are the Penalties for Refusing a DWI Chemical Test?

As can be seen, the penalties for refusing to take a chemical test in New York are significant and separate from the punishment for any criminal DWI offense with which a person may be charged. Once again, when a person is lawfully arrested for a DWI and refuses to submit to the testing outlined above, their driving privilege is immediately suspended, and they will be fined.

If the person is a first-time offender, their license is suspended for 1 year, and they are fined $500. If the offense is a second or subsequent DWI offense within the previous 5 years, their driver’s license may be suspended for as long as 18 months, and they must pay a fine of $750. This is true even if it is the person’s first refusal to take the test.

If a person’s license is revoked indefinitely, they may apply to reinstate their license after 5 years. Underage motorists who refuse to take the test must pay a $300 fine, and their license is suspended for one year. Further, they must pay a $100 application fee to regain their license after the suspension.

Do I Need a Lawyer for Help With DWI Charges in New York?

In New York, a DWI offense is a serious matter with significant and immediate consequences. Thus, if you refused a chemical test when stopped on suspicion of a DWI or after being arrested, you should immediately contact a local New York DWI attorney. can connect you to an experienced New York criminal defense lawyer who can help you fight any charges, as well as possibly help you reduce the penalties associated with refusing a chemical test. Your attorney may also represent you in court proceedings if necessary.


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