If you’ve been arrested for a DWI, you may wonder whether you should submit to a breathalyzer or other chemical test. While you have the right to refuse, it’s important to understand the administrative and criminal consequences of doing so. Since there can be many pros and cons to refusing a chemical test, the decision must be carefully weighed. It’s crucial to consult with an experienced criminal defense attorney immediately who can advise you regarding the best course of action based on the specific facts of your case.
What Happens if You Refuse a Chemical Test?
There are several advantages and disadvantages when it comes to refusing a chemical test. If you don’t submit to the test, you are preventing the prosecution from having evidence that can be used against you in your criminal case. However, it’s vital to be aware that law enforcement can still obtain a warrant to compel a test if you refuse one. A refusal can also be used at trial as “consciousness of guilt.” In other words, the prosecution can try to persuade the jury that you didn’t take the test because you knew you were impaired.
In addition to any criminal penalties you may face, refusing a chemical test will also lead to administrative consequences imposed by the DMV. Under New York’s implied consent law, drivers are considered to have agreed to a breath or chemical test if lawfully arrested for a DWI. Failure to consent can result in the following administrative penalties:
- First refusal: License revocation of one year and a monetary fine of $500.
- Subsequent refusals: License revocation of 18 months or longer and a monetary fine of $750.
You can challenge the license revocation at a DMV hearing, which must be scheduled within 15 days of your arrest. This hearing is separate from the criminal case brought against you by the prosecution. If you fail to attend the hearing, your license will be revoked automatically.
What Defense Strategies Can Be Used if You Refuse a Chemical Test?
If you refuse a breathalyzer or other chemical test, a skilled criminal defense attorney can still create a strong defense in your case. Depending on the circumstances, a refusal may even provide a strategic advantage, as the prosecution would need to rely solely on observations to prove impairment beyond a reasonable doubt. Critically, if your BAC was very high, refusing the test may have been the better option to prevent evidence of the results from being introduced at trial. In such cases, a refusal can potentially lead to lesser charges than those you might otherwise face for an Aggravated DWI.
Based on the facts, an attorney may be able to challenge the legality of the initial traffic stop, look for procedural errors, or raise Constitutional violations. Notably, errors in law enforcement procedures and violations may result in suppressed evidence, a more favorable plea deal, or even outright dismissal. Your attorney might also argue that a diagnosed medical condition prevented you from taking the test, or dispute whether your conduct actually constituted a refusal.
Under New York law, the police are required to warn you of the consequences of refusing a chemical test in clear, unequivocal language. In the event the warning was not proper, evidence of your refusal may form the basis of a motion to suppress in court. If a judge rules that evidence of your refusal is inadmissible at trial, the prosecution would not be able to use it to argue consciousness of guilt. While the underlying DWI charge would not be dismissed solely based on the exclusion of refusal evidence, this can significantly weaken the prosecution’s case.
Contact an Experienced New York Criminal Defense Attorney
The question of whether to refuse a chemical test is complex. It’s essential to consult with a knowledgeable criminal defense attorney who can advise you. The attorneys at D’Emilia Law provide trusted representation and aggressive advocacy to those facing DWI charges, and they work to achieve the best possible outcome in every case. To schedule a consultation, contact us at 1-888-DEMILIA.
