When most people think about DWI, DUI or drunk driving offenses, they assume that one of the major consequences of a guilty plea or a guilty verdict after trial is that their driver’s license will be suspended or revoked for a long period of time, along with the possibility of jail, fines and probation. What many people don’t realize, and what is counter-intuitive given the presumption of innocence in our criminal justice system generally, is that your license will often be suspended while the prosecution is still pending, well before your guilt has been proven or you have even had a chance to contest the case in any meaningful way.
One of the ways this kind of suspension can happen is if you refuse to take a breath test, colloquially referred to as a breathalyzer. This can happen in the context of being asked to blow into a portable breath test device, or PBT, or being asked to blow into the larger and more accurate Intoxilyzer back at the police precinct.
New York’s Vehicle and Traffic Law, or VTL, contains a provision that clearly establishes that you have the right to decline to take such a breath test that would determine your blood-alcohol content, or BAC. However, that same statute also makes it clear that your refusal to submit to the test will result in the immediate suspension of your driver’s license and driving privileges in New York, provided that you were appropriately advised of your rights and the consequences of your refusal. What’s more is that in New York, unlike many other states, your refusal to take the breath test can be used against you at a subsequent trial to prove your intoxication.
People often ask experienced criminal attorneys, “When I get pulled over, should I blow or not?” Unfortunately, there is no clear answer to this question. Your ability to refuse is an important right, but exercising that right comes with what can amount to a very serious consequence for some. If you are ever put in the position in which you have to make that decision, many thoughts will surely be rushing through your mind: “How many drinks did I have?”; “How long ago did I stop drinking?”; “Do I want law enforcement to have this kind of scientific evidence that they could use against me?”; “Do I trust the accuracy of this machine?”; “When is the last time they calibrated the machine?”; “How will it look if I refuse?”; and “How will I get to work if my license is suspended for refusing?”
Unfortunately, you will typically not be given the opportunity to consult with an attorney before making this critical decision. You typically will not even be given much of an opportunity to consider your choices carefully. However, no matter what decision you did make, it’s imperative that you consult with an experienced criminal defense attorney who understands the reality and the context of how these kinds of decision get made, and who understands the complexities of these various breath test devices.
This blog entry is not an attempt to substitute for an examination of your particular case by your own criminal defense lawyer who will determine what is best for your case. Instead, this entry can give you the foundation to better understand the implications of refusing a BAC breath test in New York State.