Refusing a Breathalyzer or Chemical Test in New York State

By: Adam H. Rosenblum Esq. | Last Updated:

Breathalyzer testPolice officers who stop a driver suspected of DWI in NY may wish to conduct field sobriety tests. In addition to testing a driver’s coordination and cognitive faculties, the officer is also likely to request the driver take a breathalyzer or other chemical test. These tests are very accurate and can be used to definitively convict drivers alleged to have been driving drunk. Knowing this, many consider refusing the test, hoping the absence of evidence will work in their favor.

Drivers who refuse a breathalyzer test can face serious consequences, including a suspended license, a hefty fine, and even jail time. Even worse, the refusal itself can be submitted as evidence against a driver in a criminal DWI trial.

What Are the Penalties for Refusing a Breathalyzer or Chemical Test?

Suspended License: Refusing a breathalyzer or chemical test in New York State can result in a 1-year license suspension. A second refusal or a refusal less than 5 years after a DWI conviction can mean an 18-month suspension.

Civil Fine: Drivers face a fine of $500 for refusing to take a breathalyzer or other BAC chemical test. Those with a prior refusal or a DWI conviction within 5 years are fined $750.

Jail: Police can arrest a person and hold them in custody pending a DMV Administrative Hearing regarding one’s refusal to take a breathalyzer or chemical test.

What Happens After You Refuse a Breathalyzer or Chemical Test?

A driver who refuses a breathalyzer or other chemical test during a DWI stop will have to face a refusal hearing. This is separate from the DWI criminal charges that will also likely be filed against the driver.

The refusal hearing is not a criminal trial (the refusal is a civil offense, not a crime). It takes place at the DMV office and is overseen by an Administrative Law Judge (ALJ). Also, because it is not a criminal case, the ALJ does not require “proof beyond a reasonable doubt”; he/she need only have “clear and convincing” evidence that the driver refused the test.

Further, the refusal hearing will not broach the subject of whether or not the driver was intoxicated at the time of the traffic stop, only whether or not he/she refused to allow the officer to test his/her BAC levels. If the arresting officer is present, he/she will testify to the relevant facts. The driver (or his/her attorney) may also cross-examine the officer. The driver is not required to testify unless he/she has compelling evidence that disproves the officer’s claims. In fact, it is almost always better to allow an attorney to do any and all speaking on behalf of the driver. One reason is that an attorney is better equipped to defeat the charge. Another is that anything the driver says can be used against him/her in the DWI criminal proceedings.

Once both parties have had a chance to present evidence and ask questions, the ALJ will make a ruling.

Common Defenses to Breathalyzer or Chemical Test Refusal

It is very difficult to win a breathalyzer or chemical test refusal hearing in New York without a skilled attorney. After all, the question of whether someone acquiesced to the officer is easy to answer, especially if the officer’s word carries more weight than the driver (which it does). That said, there are several valid reasons for refusing a test, provided evidence for each can be submitted to the court.

  • Medical condition. For tests requiring breathing into a device, there are certain of medical conditions that can prevent a person from being able to provide enough air to accurately measure BAC. This may be the case for individuals with serious asthma, chronic obstructive pulmonary disease (COPD), or smokers with emphysema. This defense only works if the driver can get a medical professional to testify at the hearing, as established in People v Collins.
  • Improper procedure/directions. Police officers are required to advise a driver in clear and direct language what will happen if he/she refuses the test. In addition, the officer must also give clear instructions on how to blow into a breathalyzer and give the person enough time to comply and follow those directions.
  • Denied right to an attorney. Drivers are permitted to consult with an attorney prior to submitting to a BAC test. Officers must allow the driver time to make a call or provide him/her access to a phone if necessary. In some cases, the officer many need to contact a lawyer on the driver’s behalf. Failure to provide access to an attorney in any way can result in the refusal being suppressed. This defense only works if the driver asks for an attorney before refusing the test. In addition, People v Gursey establishes that efforts to consult with an attorney cannot impede the officer’s ability to investigate the matter—if the driver was provided an opportunity to reach an attorney but unable to make contact, then this defense will not work.

There are other ways a driver can avoid the consequences of a BAC test refusal. However, it is always best to consult with an attorney before deciding on a strategy.

Common Questions About Refusing Breathalyzer or Chemical Test in NY

Is it a crime to refuse a breathalyzer or chemical test?

No, but it is a civil offense and thus it is against the law to refuse.

What if the driver is under 21 and refuses a BAC test?

Drivers under the age of 21 who refuse a breath or chemical test can have their license suspended for one year. A second refusal under the age of 21 can mean a suspension for one year or until the driver is 21, whichever is longer.

Can police physically force me to take a chemical test?

In most cases an officer will not force a driver to take the test against their will (although they should warn him/her about the consequences of refusal). However, in cases involving a serious accident with injuries and/or death, an officer may get a warrant to take bodily fluids by force in order to prove intoxication.

Why am I required to submit to a breathalyzer or chemical test?

NYS VTL 1194 states that drivers provide implied consent to submit to BAC tests any time they get behind the wheel of a car. Thus, those who refuse are denying the consent that they have, under the law, already provided and can be subject to penalties as a result.

Is refusing a breathalyzer an admission of guilt?

Refusing a BAC test is not a “smoking gun” proving a driver was under the influence at the time of the traffic stop. However, it is a serious piece of evidence that can be used against him/her in the DWI criminal trial. The assumption is that if a person was sober he/she would have just submitted to the test.