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To Take It Or Not To Take It: The Chemical Test

What is the chemical test?

Drivers may be asked to submit to a chemical test in New York State by the officer.

If there is probable cause that the driver was operating the vehicle while intoxicated. In New York State the Implied Consent law requires the driver to submit to the test on the basis that a driver implicitly agrees to submit to testing when appropriate simply by getting behind the wheel of a vehicle. The chemical test may be a blood, breath or urine. The type of test is decided by the officer, and will determine the percentage of alcohol in the driver’s blood. The driver does not get to choose which test he or she wants to take.

What are the consequences of refusal?

Refusing to take the chemical test is a civil violation, completely independent of any DWI charges you may be facing. For a first time offender refusing to submit to the chemical test your driver’s license is immediately suspended and subject to a one year revocation if the refusal is deemed to be valid by the New York State Department of Motor Vehicles. You must pay a civil penalty of $500, as well as $250 a year for three years for driver responsibility assessment. For repeat offenders the license revocation time periods are longer, and the civil penalty fines are greater. You also face indirect consequences such as your refusal being used against you in a DWI trial. Also, some District Attorney Offices take a harsher stance on drivers who refuse to submit to a chemical test.

Why might you refuse to take the test?

Refusing to take the chemical test eliminates that potential piece of evidence from being offered against a driver at any subsequent trial. The prosecutor must instead use “common law” indications to prove that a driver was intoxicated such as erratic driving, slurred speech or field sobriety tests. This may be beneficial in a case where an accident was involved and the legal ramifications of a conviction could lead to higher-level criminal charges than a typical DWI, or even prison. Refusal may also be beneficial if the driver has previous DWI convictions that would cause the driver to be facing a felony charge. However, any benefit to not having an actual BAC used against the driver may be lost when you consider that the prosecutor is likely to ask for and receive an instruction from the judge where the jury will be told they can presume the driver refused to take a chemical test because they were intoxicated. As a result, there is no simple answer for this question and the best advice is to consult with an experienced DWI attorney if possible. It is important to note that in most cases refusing the chemical test as a strategic decision will not prevent your arrest and only serves to prevent the prosecution from having an actual blood alcohol level.

Don’t make this decision on your own

The decision to refuse to take the chemical test has many negative consequences.This decision will cost you money, affect your ability to drive and may be used as evidence of guilt in a trial. These decisions are based on many factors and should not be made without the help of an experienced DWI attorney. Team Green Lawyers knows the important questions to ask to help guide you toward the decision that will best protect your future.