By: Adam H. Rosenblum Esq. | Last Updated:
Being accused of driving while intoxicated comes as a shock to most people. This makes handling a driving while intoxicated (DWI) traffic stop all the more challenging, especially if the driver actually is impaired. This impairment could cloud their judgement and impact decision-making. Yet, making the right decisions can mean the difference between license suspension versus no license suspension and even jail time versus staying out of jail.
If an officer suspects a driver is intoxicated, they will typically ask the driver to take a breathalyzer test. A breathalyzer is a device that measures the amount of alcohol in a person’s system by analyzing their breath after they blow into it.
Drivers who have been accused of a DWI often wonder whether they needed to or should have taken the breathalyzer test. As with most legal questions, the answer is, it depends. This article explains what New York’s state law says about refusing a breathalyzer, the consequences of refusal, and when it might be appropriate to do so.
Breathalyzer vs. Chemical Test: What’s the Difference?
New York’s state law describes a blood alcohol content (BAC) test as a “chemical test.” This term is not familiar to the general public, who better know a BAC test as a “breathalyzer test.” The difference between the terms requires some explanation.
There are a few different types of tests that can be administered in the course of a DWI investigation, including:
- A portable breathalyzer test or “PBT”
- Chemical testing of a driver’s
- Breath (breathalyzer)
A PBT is commonly administered roadside during a traffic stop. This investigative tool is used by police officers to determine whether the driver is impaired enough to justify making an arrest and investigating further. PBT results are admissible in court in New York, provided that the PBT device is approved by the State, the legally required chemical test refusal warnings were given, and the test was administered properly.
The other types of chemical tests are usually administered at the police station once the driver has been arrested. The main test used in the case of suspected intoxication by alcohol is a breathalyzer test. This breathalyzer test is different from the PBT in that it uses a different machine and is generally considered to be far more accurate.
An alternative to the breath test is a blood test. It is sometimes used when a driver is unable to give an accurate breath sample. A blood test is used less frequently than a breath test because it is more invasive and requires a warrant unless the driver requests it themself. The U.S. Supreme Court held in Birchfield v. North Dakota that a breathalyzer test can be administered without a warrant, but a blood test requires a warrant in most cases. Urine tests are considered less accurate than breath and blood tests and are more commonly used for situations where the driver is suspected of intoxication by drugs. The same goes for testing a driver’s saliva.
For the sake of simplicity, in this article we will use the term “breathalyzer” broadly to represent PBTs and all other forms of chemical testing. Though the rules discussed do generally apply to blood, urine, and saliva tests, there are some significant exceptions, especially with blood tests, given that they often require a warrant. This is just one reason why it’s crucial to consult an experienced attorney who can investigate your specific circumstances.
Are You Required to Submit to a Breathalyzer?
In most cases, you aren’t required to submit to a breathalyzer test. However, test refusal comes at the price of fines and license revocation.
Like every other state in the country, New York has implied consent laws. Implied consent basically means that by driving on New York’s public roads, drivers have implicitly submitted to a breathalyzer test when a police officer has reasonable grounds to believe the driver is driving while intoxicated. In other words, taking a breathalyzer test under these circumstances is a condition of driving in New York. Refusing a breathalyzer after the officer has complied with all the legal requirements is a civil offense punishable by fines and license revocation.
One exception to the general rule that drivers have the option of test refusal is if the officer is able to obtain a court order called a warrant. NY Veh & Traf L § 1194 provides:
[N]o person who operates a motor vehicle in this state may refuse to submit to a chemical test of one or more of the following: breath, blood, urine or saliva, for the purpose of determining the alcoholic and/or drug content of the blood when a court order for such chemical test has been issued.
To obtain a warrant forcing one to submit to a breathalyzer test in New York, all of the following must be true:
- The driver was operating the motor vehicle.
- Someone other than the driver was killed or suffered serious injury
- The driver was in violation of New York’s drunk driving laws OR the driver’s preliminary breath test indicated intoxication.
- The driver was placed under lawful arrest.
- The driver refused the chemical test.
The law, however, does recognize that a warrant may not always be necessary to test a driver’s BAC without their consent, especially if time is of the essence. For example, if a suspected drunk driver is injured and rushed to the hospital, their BAC will frequently be tested without their express consent and without the police having a warrant.
Breathalyzer Refusal Offense
NY Veh & Traf L § 1194 explains the procedures a police officer must follow in offering a breathalyzer test, and outlines the procedures and consequences following a driver’s refusal of this test. Chemical test refusal, as the law calls it, is technically a civil offense. The offense is defined as follows:
- V&T Code: § 1194(2)
- Offense Title: *Not officially named but commonly referred to as “chemical test refusal”
- Designation: Civil offense
- Refusing to submit to a chemical test or any portion thereof when the police officer
- had reasonable grounds to believe the driver operated a motor vehicle after having consumed alcohol
- requested that the driver submit to a chemical test
- informed the driver that their license or permit to drive and any non-resident operating privilege shall be revoked for refusal to submit to such chemical test or any portion thereof, whether or not there is a finding of driving after having consumed alcohol
- Fine: $500
- BUT if prior DWI-related offense in past 5 years, fine is $750
- Driver responsibility assessment fee: $250 a year for 3 years
- Reinstatement fee: $100
- License revocation:
- IF first offense, minimum of 1 year
- IF prior DWI-related offense in past 5 years, minimum of 18 months
- Cannot get a conditional license to drive under limited circumstances during one’s license suspension or revocation period
- Can be used as evidence against one in their DWI case
- Police can hold a driver that refuses a breathalyzer or chemical test in custody pending their administrative hearing
Should You Refuse a Breathalyzer?
The question of whether one should refuse a breathalyzer is complicated. New York’s state law is quite clear as to its position on the matter: the threat of fines and license revocation are intended to discourage test refusal. While as a general rule, it’s a lawyer’s advice to follow the law, we acknowledge that refusing a breathalyzer has advantages and disadvantages. The United States Supreme Court recognized as much in Birchfield v. North Dakota, where they stated:
If the penalty for driving with a greatly elevated BAC or for repeat violations exceeds the penalty for refusing to submit to testing, motorists who fear conviction for the more severely punished offenses have an incentive to reject testing.
One way to think about the line between when refusal does and does not make sense is the question of how intoxicated you believe yourself to be. This chart is not intended as legal advice as to when one should and should not refuse a breathalyzer. It merely illustrates a way of calculating when refusing testing might be more or less advantageous.
When You Should NOT Refuse a Breathalyzer
As a general rule, it is more to your disadvantage to refuse a breathalyzer if you don’t believe yourself to be very intoxicated. The main reason is that if your BAC is in fact lower than .08%, the consequences are worse for refusing a breathalyzer.
People that refuse a breathalyzer are usually charged under § 1192(3), known as a “common law DWI.” This offense is defined as driving while in an intoxicated condition. It is used in the event that a breathalyzer is refused because the offense isn’t tied to a specific BAC value. If convicted of this misdemeanor offense, a driver faces various fees and fines, a six-month license revocation period, and a possible jail sentence up to one year.
For context, the consequences for this offense are virtually identical to those of New York’s per se DWI offense, which is defined as driving with a blood-alcohol of .08% or greater.
This may not make sense for someone who wasn’t drinking very much or did not drink at all. If you didn’t drive with a BAC above .08%, why risk being punished as if you did, especially if more favorable alternatives exist?
If you haven’t had very much to drink, you could register a BAC below .08%. A BAC between 0% and .05% is within the legal limit, something for which you likely wouldn’t be charged. A BAC between .05% and .07% constitutes a DWAI (driving while ability impaired), a traffic infraction that carries only a 90-day license suspension period, a maximum possible jail sentence of 15 days, and much lower fines than a common law DWI offense. Both options are better than being charged with a common law DWI and incurring separate penalties for refusing a breathalyzer.
Bottom line: if you don’t think you’re very intoxicated, you are probably worse off refusing a breathalyzer. If you register a BAC below .08%, you can be charged with a lesser offense or not charged at all. If there is no BAC measure because you refused the test, you are stuck with a breathalyzer refusal charge on top of the consequences of someone that registered a BAC of .08% or more.
When You Might Consider Refusing a Breathalyzer
It is generally more to your advantage to refuse a breathalyzer if you believe you are very intoxicated, meaning well over the DWI legal limit of .08%. This is because if your BAC is .18% or higher, you risk far worse penalties than those for a common law DWI.
Remember, when a driver refuses a breathalyzer, they are usually charged with a common law DWI offense, which has the same consequences as registering a BAC of .08% or more. When you’re not very drunk, refusing a breathalyzer likely works to your disadvantage because without the police knowing your BAC level, you might miss out on being charged with the less severe DWAI offense or no offense at all. The opposite is true for someone who knows they are quite intoxicated.
Refusing a breathalyzer when you are very intoxicated can be to your advantage because you may be able to protect yourself from being charged with a more severe offense. New York’s comprehensive system of DWI laws features an offense more serious than a common law DWI, known as an aggravated DWI, per se. An aggravated DWI is defined as driving with a BAC of .18% or greater. If you refuse a breathalyzer, you will probably be charged with a common law DWI and incur additional penalties for refusing. But if you take a breathalyzer and you are very drunk, you risk registering a BAC of .18% or greater and being charged with an aggravated DWI, per se, which is a more severe offense.
Being convicted of this offense for the first time can carry a fine between $1,000 and $2,500, a one-year license revocation, and up to a year in jail. Subsequent offenses carry progressively worse penalties. On balance, the penalties for an aggravated DWI, per se charge alone can be considered worse than the penalties for a common law DWI plus the additional refusal penalties. If an aggravated DWI appears worse than a common law DWI, it is advantageous to refuse a breathalyzer if you are very intoxicated, assuming you will be charged with a common law DWI as a result.
An important disclaimer is that refusing a breathalyzer is sometimes not enough to avoid an aggravated DWI, per se charge. This is because even if you refuse a breathalyzer, the police can acquire evidence of your BAC by administering a blood test or by other means. This can happen a few different ways, including:
- If you consent to a blood draw
- If you are taken to the hospital, you are unable to give consent, and the medical staff draws your blood
- If the police are able to obtain a court order forcing you to submit to a BAC test
If you refuse a breathalyzer but the police learn your BAC by another legal method, you will end up with both a higher-penalty DWI and breathalyzer refusal penalties.
Bottom line: if you think you are very intoxicated, refusing a breathalyzer may be to your advantage because there are worse offenses you can be charged with if you register a high enough BAC. But the success of this strategy is not guaranteed, and you could end up with breathalyzer refusal penalties on top of an aggravated DWI charge.
How Does Refusing a Breathalyzer Affect Your DWI Case?
There are many possible advantages and disadvantages to refusing a breathalyzer.
- Can protect against an aggravated DWI, per se charge
The aggravated DWI, per se offense is defined as driving with a BAC of .18% or higher. It becomes difficult for the State to charge a driver with any BAC offense that is tied to a BAC amount if the driver refuses a breathalyzer. This is why these drivers are usually charged with a common law DWI, which is not tied to any BAC amount.
- Denies the State concrete evidence of intoxication
If you know yourself to be well above the legal limit, it might also make sense to refuse a breathalyzer as a way to deprive the State of concrete evidence of your intoxication. Of course, the State can use the fact that a driver refused the tests as evidence of their guilt, but there is no guarantee that the judge or jury will buy this argument. As discussed below (see “How to Defend Against the Consequences of Breathalyzer Refusal”), there are ways for an attorney to convince the judge or jury that the driver had a legitimate reason for refusing the tests besides them being guilty. When a driver refuses, the State has to rely on other, more subjective evidence, such as the officer’s testimony about the driver’s appearance and their performance during the field sobriety tests. It’s much easier for an attorney to undermine this sort of subjective evidence than it is to dispute an objective BAC reading that is well above the legal limit.
- Makes probable cause for arrest more difficult
When an officer pulls a driver over and suspects the driver of driving while intoxicated, they must have probable cause to arrest that person for a DWI offense. In People v. Vandover, the court said for an officer to have probable cause to arrest someone for a DWI, it must be “more probable than not that [the] defendant is actually impaired.” One defense against a DWI charge is arguing that the police officer did not have probable cause to arrest the driver in the first place. When a driver refuses to take a preliminary roadside breath test, the officer is deprived of important evidence that might otherwise lead them to believe it is more likely than not that the driver is impaired. They therefore have to rely on more subjective evidence, like the defendant’s appearance and performance of the field sobriety tests. This subjective evidence can be challenged in court much more easily than a more objective measure, such as a breathalyzer reading.
- Separate penalties
Refusal carries significant consequences on top of any penalties you might incur if you lose your DWI case. As long as the officer followed all the requirements prescribed by the law, in all likelihood, the Department of Motor Vehicles will revoke your license for at least one year. You will also not be eligible for any relief in the form of a conditional license, which would otherwise give you limited driving privileges for things like getting to and from work. On top of all of this, there are hundreds of dollars worth of fines.
- Refusal used as evidence in DWI case
When you refuse a breathalyzer, you are suggesting to the officer that you believe you will register a high blood-alcohol content reading. This can raise the odds that you are arrested for a DWI. Even worse, when it comes time for trial, the State can present your refusal as evidence supporting your guilt. It might be challenging for your attorney to argue you weren’t guilty of driving while intoxicated if the judge or jury first hears the officer testify to all the reasons they suspected you were intoxicated, such as your blood-shot eyes, slurred speech, and smell of alcohol, and then explains how you refused to have your BAC tested. This can seem to a judge or jury to be the actions of a guilty person. The question becomes, “If you weren’t drunk, why not just take the test?”
- Risk of more severe penalties
Refusing a breathalyzer usually results in being charged with a common law DWI, a misdemeanor that carries fees, fines, and the possibility of jail time. These penalties are worse than those for New York’s mildest DWI offense, a DWAI, which is classified as a traffic infraction rather than a misdemeanor or felony. This becomes significant if the driver would have registered a BAC under the DWAI legal limit of .05%, which would ordinarily carry no penalties, or a BAC within the range of a DWAI offense, .05% – .07%. In these two scenarios, the driver’s refusal would mean risking more severe penalties than what they would have been exposed to had they submitted to the breathalyzer.
- Less available defenses
Refusing a breathalyzer limits your attorney’s ability to argue in your defense. For example, a common defense against a DWI charge is that the breathalyzer test results were faulty. This argument is effective because breathalyzers are known to be inaccurate by at least .01%. This makes all the difference when a driver’s BAC is close to the legal limit. When a charge relies on a driver’s BAC level, arguing the results of the test are faulty can help to cast doubt as to whether the driver’s BAC was actually within the range of what is prohibited by the particular offense. Obviously, if there is no breathalyzer administered, this otherwise forceful argument is off the table.
How to Defend Against the Consequences of Breathalyzer Refusal
Breathalyzer refusal can have negative implications both directly, in the form of administrative penalties, and indirectly, in the form of the refusal being used as evidence at a trial for an underlying DWI charge. Though defending against these consequences is no simple task, a skilled attorney can help to defend against both administrative penalties and the use of test refusal evidence at trial. They can mitigate the indirect effects of test refusal either by arguing in court that the evidence of the test refusal should not be admissible, or by demonstrating to the judge or jury why the test refusal does not implicate the accused driver’s guilt. A few common strategies for achieving this are:
- Giving a valid reason for refusal
- Arguing the police officer didn’t follow proper procedure
- Arguing the police officer didn’t give access to an attorney
Giving a Valid Reason for Refusal
One can mitigate the negative consequences of a breathalyzer refusal by giving a valid reason for refusal besides the negative inference that they were simply guilty as charged. A good example is offering that one could not physically participate in the breathalyzer test because a medical condition prevented it. Breathalyzers work to measure the blood alcohol content based on one’s breath. The results can be skewed if the driver is unable to muster enough breath because of a medical condition affecting their lung capacity. Of course, this argument might also have to account for the alternative chemical tests, which can use samples of one’s blood, urine, and saliva. But, these alternatives can also be dismissed by arguments such as citing the fact that urine tests are notoriously inaccurate at measuring BAC.
Arguing the Police Officer Didn’t Follow Proper Procedure
There are certain legal requirements police officers must follow when offering a driver a breathalyzer. These include:
- having reasonable grounds to believe the driver operated a motor vehicle after having consumed alcohol
- requesting that the driver submit to a chemical test
- informing the driver that their license or permit to drive and any non-resident operating privilege shall be revoked for refusal to submit to such chemical test or any portion thereof, whether or not there is a finding of driving after having consumed alcohol
If the police officer failed to fulfill any of these requirements, one’s attorney can argue both at the administrative hearing regarding license revocation and at the DWI trial that the refusal should not be considered because the officer failed to follow proper procedure.
For example, in the case People v. Odum, Odum challenged the admissibility of his breathalyzer test results at his DWI trial on the grounds that the police officer’s failure to follow proper procedure resulted in Odum’s consent to the breathalyzer test being involuntary. When Odum was arrested for a suspected DWI, the police asked him to submit to a breathalyzer test at the police station. As the statute requires, they informed him that if he refused, his license could be revoked and his refusal could be used against him at trial. But, there was a timing issue.
Odum’s attorney argued these instructions were inaccurate because the test was being offered more than two hours after Odum was arrested; test refusal is only punishable when the test is offered within two hours of the driver’s arrest. The court agreed and refused to allow Odum’s breathalyzer test results to be presented at trial. They reasoned that Odum had been coerced into taking the test because he was told that refusing the breathalyzer would have certain negative consequences, which was inaccurate because more than two hours had passed since his arrest when the test was offered to him and the consequences only apply when a driver refuses a request made within two hours of their arrest.
Arguing the Police Officer Didn’t Give Access to an Attorney
New York’s state law provides that if a driver desires to contact their attorney before deciding whether to submit to a breathalyzer, the officer must give them reasonable opportunity to do so as long as the test isn’t unduly delayed. If the officer fails to give you this opportunity despite your request, this can be used to defend against sanctions at the administrative hearing and either argue for the exclusion of refusal evidence at the DWI trial or mitigate the weight of this evidence of refusal at trial.
Procedures After a Breathalyzer Refusal
Refusing a breathalyzer is a civil offense separate from any DWI charges that are brought. So, when a driver refuses a breathalyzer, the procedures related to the test refusal offense will be in addition to any arrest and subsequent legal proceedings related to the DWI charge.
When a driver refuses a breathalyzer, the law says the officer should first make sure they have followed all of the requirements, such as warning the driver of the consequences of test refusal. Next, the police officer makes a written report essentially detailing that they followed the procedures and the driver refused the test. The law provides that this report will be presented to the court at the time of the driver’s arraignment, which is the first hearing in a criminal case where the accused driver is told what they’re being accused of and is asked to enter a plea of guilty or not guilty. At the arraignment, the driver’s license is suspended, and the report is forwarded to the New York Department of Motor Vehicles, where a separate administrative hearing will be scheduled. At the administrative hearing, the officer must prove the following:
- The police officer had reasonable grounds to believe the driver was driving while intoxicated.
- The police officer made a lawful arrest of the driver.
- The police officer warned the driver before refusal that refusal would result in their license being immediately suspended and later revoked if found guilty at the administrative hearing regardless of their innocence or guilt in their DWI case.
- The driver refused the chemical test or a portion thereof.
If the hearing officer, the person presiding over the hearing, finds all of the elements have been proved, the driver’s license will be revoked. If any of the elements are not proved, the driver’s license will be reinstated.
How Common is Breathalyzer Refusal?
More recent data on breathalyzer refusal in New York is sparse. The National Highway Transportation Safety Administration (NHTSA) reported that in 2005, breathalyzer tests were refused in New York at a rate of 12%. This figure is well below the 2005 national average for breathalyzer refusal, which stood at 22% according to the same report.
Frequently Asked Questions
Refusing a breathalyzer is not a per se admission of guilt. In other words, you’re not categorically admitting guilt by refusing a breathalyzer. However, this can rouse suspicion for both the police and the judge or jury at court. The police might be more inclined to arrest and charge a driver that refuses a breathalyzer while presenting other signs of intoxication. The State can then present evidence of this refusal at court. It is possible for a judge or jury to make a negative inference that you refused the breathalyzer because you knew you were guilty.
Yes, refusing a breathalyzer can affect one’s auto insurance. This is because breathalyzer refusal is almost certain to result in immediate suspension of one’s driver’s license, and the administrative penalty for refusal includes license revocation. In New York, an insurance company can cancel one’s auto insurance policy if the policyholder’s driver’s license is suspended or revoked. Being convicted of the underlying DWI can also result in insurance premiums being raised later on.
Public defenders are capable but limited in significant ways. One issue is that they cannot represent you in an administrative hearing. Breathalyzer refusal results in a separate administrative process, so it’s most helpful to have a private attorney at least for that reason. Public defenders are also notoriously overworked. They don’t control their caseload like a private attorney does. So, a private attorney is usually able to give a driver much more individualized attention than a public defender can. Private attorneys you hire yourself are also a better option than a court-appointed attorney for the same reason. Court-appointed attorneys aren’t usually paid very much by the court to represent you and are not typically paid to attend administrative hearings. So the limitations of a public defender are also true of court-appointed attorneys.
Underage drivers who refuse a breathalyzer are subject to slightly different penalties. The driver will still have an administrative hearing concerning their test refusal on top of whatever else they’re being charged with. The penalties for an underage driver’s test refusal are a $500 fine and license revocation for a minimum of one year for a first offense. If the driver has a prior DWI-related conviction in the past five years, the fine is $750, and their license is revoked for one year or until the driver turns 21 years old, whichever is longer.
An out-of-state driver who refuses a breathalyzer is still subject to prosecution for any underlying DWI charges in New York. They are also subject to license suspension and revocation in New York. § 1194(2) makes clear that license suspension and revocation for test refusal also applies to “any non-resident operating privilege,” meaning the privilege of a non-New York resident to drive in the State. An out-of-state driver should also be aware of the Interstate Driver’s License Compact (IDLC), an agreement among several states to share information about traffic-related offenses to ensure drivers can be appropriately sanctioned in their home states. New York’s state law provides the State will notify the home state of an out-of-state driver when that driver is convicted of any traffic-related offense in New York, provided that the driver’s home state is an IDLC member state (all but four of the 50 states are members). The driver’s home state can then sanction the driver itself as long as the state has a similar offense under their state law as what the driver was convicted of out-of-state. All 50 states in the U.S. have implied consent laws penalizing breathalyzer refusal. So, out-of-state drivers convicted of breathalyzer refusal will likely have their license suspension or revocation upheld in their home state.
Experts believe a .08% BAC, the per se DWI legal limit, is equivalent to three standard drinks in an hour for a woman and four for a man. Standard drinks are a 12 fl. oz. beer, a 5 fl. oz. glass of wine, and a 1.5 fl. oz. shot of liquor. This can vary significantly for a variety of reasons, such as a person’s body weight. As a general rule, drivers should avoid driving when drinking.
No. New York’s implied consent law does not extend to field sobriety tests. This is important because sometimes even sober drivers fail field sobriety tests. However, drivers should keep in mind that refusal can be used against them in court if they are ultimately charged with a DWI offense. Also, refusal can invite further suspicion from the police officer, which can elevate the chances of the driver being arrested on suspicion of a DWI.
A blood test is generally more accurate at measuring one’s BAC than a breathalyzer. Whether it is better for your DWI case depends on your level of intoxication and your desired outcome. For example, if you don’t think you’re very drunk, you might opt for a blood test because it’s more accurate; you don’t want your BAC to be skewed higher than what it is. If you register a favorable BAC level, then this is the right decision. But what if you register a .09% BAC? Then, the greater accuracy works against you. With a breathalyzer, you can normally argue that the breathalyzer had some percentage of error. So a .09% might actually be below the .08% legal limit marker if we account for error. However, a blood test is more accurate, so a .09% is probably a .09%. This analysis is generally quite difficult, so people usually opt for a breathalyzer, as it is less invasive.
Who Should I Contact?
A DWI traffic stop is a frightening experience. Most times, drivers have no clue whether they should consent to the breathalyzer test when they are pulled over and processed. Refusing a breathalyzer can complicate a DWI case further, making it crucial to consult an experienced DWI defense attorney. At Rosenblum Law, our talented attorneys have vast knowledge of the law and extensive experience expertly handling these sensitive cases. We are deeply committed to protecting our clients’ rights and guiding every case we take on to a successful conclusion. E-mail or call 888-815-3649 for a free consultation.