Ithaca Watkins Glen DWI Lawyer explains Why a REFUSAL in NY must be "PERSISTENT"

A DWI REFUSAL 

TO TAKE A BREATH or BLOOD TEST

IN NEW YORK 

MUST BE "PERSISTENT" 

In New York, we have a statutory right to REFUSE a police officer's request that we provide a sample of our breath or blood for alcohol & drug analysis in a DWI case... 

However, there are both rules and consequences that go along with any REFUSAL in a DWI case.  

Today, I'm just going to focus on one aspect of the RULES that govern the police when accepting a REFUSAL from a DWI suspect .... the requirement that the refusal is PERSISTENT. 

What does Persistent mean?  

"To continue steadfastly or often annoyingly, especially in spite of opposition"

This means a couple of things with respect to a DWI breath or blood request by the police.

1.  It means that you have to DECLINE to take the test once.  

2.  After you decline (but not before), the police are required to TELL YOU and WARN YOU about the consequences of refusing to take the test.  These warnings have to be clear and unequivocal --and you must understand them.  

3.  Then, after you have heard the warnings once, you are asked if you will submit to the breath or blood test.  

4.  If you refuse after hearing the warnings ONCE--then your refusal may be deemed "PERSISTENT." 

BOTTOM LINE: 

If you continue to REFUSE AFTER you have heard and understood the officer's warnings about the consequences of the refusal, then your refusal can be considered "persistent."

WHY IS THIS IMPORTANT?

If your refusal is deemed persistent, clear and unequivocal, and you understood it--then the prosecutor CAN USE THE EVIDENCE OF YOUR REFUSAL AGAINST YOU AT TRIAL. 

The jury can be given an instruction from the judge that they are to interpret your refusal to take the blood or breath test as "consciousness of your guilt" in a DWI case.  

However, there are some situations where REFUSING is the best course of action.  I'll cover that in another post.  It's complicated. 

[if you have questions about your case, give us a call or contact us and we will be happy to talk to you]

BY:  Attorney Mike Cyr 

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

Twitter:   @ithacadwi