To Blow or Not to Blow, That Is the DWI Question

In my last entry on breathalyzers used in DWI investigations, I explained the distinctions between a preliminary breath screening test (PBT) and the chemical breath test. Most clients will wonder whether or not they should “blow” and provide the breath sample required under New York’s implied consent law [VTL Sec. 1194-2(a)] if they are ever arrested and charged with DWI. After all, why would someone ever willingly give the police evidence of their blood alcohol content (BAC) that could be used against them in court? Well, there are several very important factors someone arrested for DWI must consider in deciding whether to comply with the request and give a breath sample to the police.

First of all, refusing to submit to a chemical breath test and not giving a breath sample does NOT mean you cannot or will not be charged (and convicted) of DWI in the State of New York. Under the State’s Vehicle & Traffic Laws(VTL), there are two different DWI charges that a motorist can be charged with either separately or in conjunction with one another: the State’s “common law” DWI statute and the actual crime of “Driving While Intoxicated – per se”.

The “common law” DWI statute (VTL Sec. 1192-3) states that “No person shall operate a motor vehicle while in an intoxicated condition.” “Intoxicated” has been defined by the courts to mean “impaired to a substantial extent” by the consumption of alcohol. No evidence of a driver’s BAC is required to prove your guilt on this charge. Rather, the prosecutor seeks to prove the driver’s guilt by introducing the testimony of police officers regarding:

  • the driver’s appearance
  • odor of alcohol
  • performance on standard field sobriety tests
  • the manner in which they drove their vehicle, and
  • the officer’s opinions as to the driver’s intoxication based upon the officer’s specialized training.

As a result, even if a driver refuses the chemical breath test, they can (and will) be charged with DWI and face the exact same potential punishments when convicted as if they had submitted to a chemical breath test.

New York’s second form of DWI is found in VTL Sec. 1192-2, the DWI per se statute. Stating “No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine, or saliva…”, this law makes it a crime to operate a motor vehicle while having a BAC of .08% or greater. If a driver submits to a chemical breath test and the tests return a BAC of .08 or higher, he or she will also be charged with this section of DWI. While this results in a second DWI charge being prosecuted, it is important to note that if a driver is convicted of both VTL 1192-2 and 1192-3 arising from the same arrest, they cannot receive consecutive jail sentences, as they were committed as part of the same criminal transaction.

It is important to remember that the majority of DWI cases are resolved with a negotiated plea bargain. For the first time DWI offender who does provide a chemical breath test, the law provides for a hardship driving privilege that allows them to drive to and from work as well as medical appointments for the first 30 days following their arraignment. After that, most drivers are eligible for a pre-conviction and post-conviction conditional driver’s license. These same drivers can also have their resulting alcohol-related suspensions or revocations (usually 90 days or 6 months – depending on what they are ultimately convicted of) lifted before the full period is over by completing the Drinking Driver Program through the New York State DMV. The driver who refuses to submit to a chemical breath test is subject to having his license revoked for one year, even if the DWI charge is dismissed in criminal court. A driver who refuses is also not eligible for that hardship privilege or the pre-conviction conditional license. Accordingly, the motorist who refused the chemical breath test will be unable to drive at all while his DWI case is pending in court.

If you are pulled over, follow our Do’s and Don’ts for being pulled over in New York State and contact a DWI lawyer as soon as possible to defend you against those DWI charges. An experienced DWI attorney will increase your chances of a favorable outcome and help regain and retain what is at stake. If you or someone you know has been charged with DWI, we can help. Call us at (315) 215-0517 for a free consultation, fill out our contact form here, or email us at Info@TeamGreenLawyers.com. At Team Green Lawyers, we’re working to give you back your life.