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Can you refuse a breathalyzer test?

If you’re pulled over in New York on suspicion of drunk driving, chances are you’ll have to submit to a chemical test also known as a breathalyzer, for alcohol-related incidents. The question is, is it within your rights to refuse to take the test?

The short answer is no. New York State has a law against chemical test refusal, called the implied consent law. The law says that anyone operating a motorized vehicle gives implicit consent to submit to a chemical test when asked to by police. This means you’re already obligated to comply once you hit the road.

Refusing a chemical test is charged as a separate crime from the DWI, so a DWI could be an additional charge.

So what happens if I refuse?

If you are arrested for a DWI or DWAI and refuse a chemical test from a police officer, your license will be suspended and you could face a fine, in line with regular DWI consequences.

You’ll likely have to go to a DMV hearing where it will be confirmed that you refused the test. If this is the case, you’ll get your license revoked for at least a year. You’ll also face a fine of at least $500. This is in addition to the charges and penalties you’ll receive for the DWI.

Even if you are not charged with a DWI, you can still face consequences for refusing the chemical test.

If you refuse a chemical test, your license will be suspended for a mandatory 6 months and you will be issued a $300 fine. Then, if you refuse a second test within five years of the first, your license will be suspended for a year and you’ll have to pay a $750 fine.

What if I’m a minor?

If you’re under the age of 21, the penalty is more severe. If you refuse to take a chemical test while underage, your license is revoked for a minimum of a year, regardless of whether or not you’re charged with a DWI.

If you refuse a second chemical test within five years of your first charge, your license is revoked until you turn 21.

So what should I do?

To put it simply, if you refuse a chemical test, you run the risk of double penalties. You can still be charged with a DWI, DWAI or Zero Tolerance after you have already faced penalties from a test refusal. It’s more than likely your license will be revoked in addition to the consequences of a DWI.

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Law Office Of Scott G. Cerbin, Esq., PLLC
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Law office of Scott G. Cerbin ESQ., PLLC