If you refuse to take a saliva, urine, breath or blood test after being pulled over for a DWI in the state of New York, what happens? Do you actually have to take one at all?
The law in New York states that you are required to take a urine, saliva, blood or breath test in the event that you are arrested for driving while intoxicated. This is due to the "implied consent" law, which implies that you give consent to one of these tests, but only if an officer has probable cause to think that you were intoxicated while driving. The officer who pulled you over will get to choose the test and it will be used determine what your blood alcohol content is. The time allotted to take this test from the last time you were driving is two hours in total. If you would like to have your own medical professional give an additional test, then you have the right to do so. This elective test is only an option if you also provide the officer with the first test that is required. You could also ask to have the test taken before you get arrested, but this is optional.
You may also have to take a breath test if you are involved in an accident. If the results of your breath test show that your blood alcohol limit is over .08, which is the legal limit, then you will be asked to take a chemical test by the officer. While you can refuse to take this test, if the officer decides to arrest you at this point, you will be required to take the chemical test anyways. If you still refuse to take the test while arrested, then you will face legal penalties.
If you refuse to take a test after taking the breath test or being arrested, then you can lose your license and face a fine. Below are the fines and penalties for refusal in different situations:
First time refusal, but have had a DWI within the last 5 years- $750 fine and 18 month license suspension.
If you're interested in seeing the official penalties for refusing a chemical test, then you can find them in New York Vehicle and Traffic Law 1194. You can't be forced to take a mandatory blood alcohol test in most situations, but there are exceptions for certain circumstances. For example, if you were in an accident where you hurt or caused death to someone else, then a court order could be obtained by the officer. This court order can be approved within minutes of the officer calling a judge right on the spot. Once the judge approves this, you would be required to take an immediate blood test.
The consequences for an individual's first DWI in the state of New York is a $1,000 fine, installing an ignition interlock device, jail time for up to a year or all of these. The consequences are worse for second and subsequent offenders. Remember that just because you refuse to take a test that doesn't mean you can't be convicted for a DWI. The court doesn't necessarily need proof that your blood alcohol content was over the legal limit. Refusing the test generally gives the prosecution reason to believe that you were guilty. This point can easily be argued in court and can result in you being convicted of the DWI. This means that refusing the test really might not help you in the long run, especially if you are trying to avoid the conviction.
Whether you're in New York or any other state, it's extremely important to hire an experienced DWI attorney if you are arrested. The serious nature of this charge calls for the legal expertise, advice and defense that a lawyer can provide you with. Without their help you could end up with maximum charges possible just because you didn't know your rights or weren't aware of the laws in the state. An attorney will look at all angles of the situation and will provide you with sound advice that you otherwise wouldn't receive.
As former NYS prosecutors, Tom Jackson and Ben Bergman know the laws regarding DWI testing in New York State and are prepared to defend you against a DWI or DUI accusation. Fill out the form at the top of this page to get a free assessment of your case.
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