Can New York drivers refuse breathalyzers if arrested for DWI?

Many motorists in the Empire State may be surprised to discover that New York law expressly dictates that all drivers operating motor vehicles in the state are already "deemed to have given consent" to chemical testing if arrested for driving while intoxicated (DWI) or driving under the influence of drugs. Essentially, this means that police can test a driver's breath, blood, urine or saliva if they believe the driver is under the influence of alcohol or drugs, although breath tests are typically the most common form of testing.

However, New York law also mandates these tests must be performed within two hours of the driver's arrest and are only authorized under the law in certain situations, which include:

  • Circumstances in which the arresting officer has conducted a preliminary breath test in the field, which indicates the driver has consumed alcohol; or
  • Circumstances in which the arresting officer has "reasonable grounds" to think that the driver was operating a vehicle while intoxicated or impaired by drugs

Importantly, when it comes to the determination of "reasonable grounds," courts generally consider the totality of the circumstances during the DWI arrest. For instance, evidence of traffic violations, strong odor of alcohol, slurred speech, failed field sobriety tests or open alcoholic containers in the vehicle can be used - separately or together - to establish reasonable grounds that the driver is impaired. However, each instance must ultimately be decided upon the facts specific to that particular DWI arrest.

Also, while New York law dictates that drivers have given implied consent to chemical testing, it is important for drivers to also know that the police cannot force drivers to submit to testing - although there are possible penalties for refusing such testing in New York.

Under New York law, if a driver wrongfully refuses chemical testing after being arrested for impaired or intoxicated driving, he or she may face a license revocation of at least one year and a fine of $500. This penalty increases to an 18-month revocation and $750 fine for a subsequent wrongful refusal within five years. It is vital that drivers take into consideration these potential consequences before refusing a breathalyzer test in New York. After all, even if a driver refuses a breath test, he or she may still face DWI charges based upon different evidence gathered by police.

Seek DWI defense assistance if needed

The laws in New York regarding implied consent can often be quite confusing for most drivers, which is why it is always best the seek the counsel of an experienced DWI defense attorney if you have been charged with a wrongful refusal or any other DWI-related offense. A skilled attorney can review the facts of your arrest and help determine what defenses may be available given your circumstances.