Ithaca Elmira Seneca DWI lawyer explains: When you SHOULD REFUSE the Breath test in NY

DWI Police Breath Test (image courtesy commons.wikimedia.org)

WHEN YOU SHOULD REFUSE THE POLICE DWI (chemical) BREATH TEST

IN NEW YORK...

This is a complicated topic.  People ask me this question all the time, and the short answer is:  IT DEPENDS.  

Every case is different, and every situation is different.  My best advice on this topic is to consult with a DWI attorney if you encounter this problem.  *You can ask the police to call your lawyer from the station.*

Unfortunately, many DWI arrests happen in the middle of the night where you cannot get a DWI attorney on the phone...or are too drunk to think about it.  

*You should also be aware that there are specific penalties both civil and in the criminal case if you REFUSE... 

For example, you automatically lose your license for a long period of time, you will owe significant civil fines, and most importantly, the prosecutor can use the evidence of your refusal as evidence of your guilt in the criminal case. *

I'll go through a few SPECIFIC SCENARIOS where REFUSING the breath/blood test would probably be in your best interests.  Again, it depends on the county and circumstances in each case...

1.  If you are facing a FELONY-level DWI charge.  You should PROBABLY refuse the breath/blood test. 

If you had a child in the car or were in an accident where somebody was seriously injured or killed someone, (or it is your SECOND DWI charge within a 10 year period), then it is probably in your best interest to REFUSE. 

The lack of a BAC number will make it harder for the Government to prosecute you, but not impossible.  Also, the penalties for felony-level charges are WAY WORSE than the consequences you will face for refusing the test.  It is a cost vs. benefit analysis.  

If you killed someone, then the police/court may COMPEL you to give a sample of your blood/breath.  So refusing will make no difference.

2.  If you are absolutely DRUNK OUT OF YOUR MIND, it is PROBABLY in your best interests to not have a BAC number to fight. 

Again, everybody is different.  We all metabolize and handle alcohol differently.  However, if you believe that you are really super drunk and your BAC % will be VERY HIGH, then it is probably in your best interests to refuse the test.  

This can help limit your criminal liability and give your defense attorney a fighting chance to lower the charge against you --if the police officers are not good on the witness stand.  You should know that sometimes a Refusal causes some local District Attorney's Offices to PUNISH YOU and PROSECUTE YOUR CASE HARDER... on principle.  

They don't want to give people a break for refusing the tests and the refusal makes prosecutors' jobs harder... 

COUPLE OF SCENARIOS WHERE YOU SHOULD TAKE THE TEST... 

-if you are charged with a DWI misdemeanor and have a CDL (commercial driver's license), take the test

[Refusing will make it harder to obtain a conditional license and you would have to remain on the conditional license for much longer than if you had just taken the breath test]

-if you have only had a couple of drinks over several hours (and your BAC number will be below 0.08%), take the test.  

[If your BAC number is below 0.08% or very close to it, then you will still likely face a criminal charge or violation, but your case is more likely to be negotiated to a good outcome by your DWI attorney]

BOTTOM LINE: 

These are general thoughts on when to REFUSE or TAKE THE BREATH TEST in a DWI case.  Consult with a DWI defense lawyer for the best advice on your particular situation.  Each case varies in each county where you are charged...because the prosecutors and police are different (and so are their sentencing policies).

BY:  Attorney Mike Cyr 

P:  607-229-5184
E:  mike.ithacadwi@gmail.com
www.ithacadwi.com
www.facebook.com/ithacadwi

Twitter:   @ithacadwi