Should you REFUSE a breath test when arrested for DWI in New York?
This article is about whether or not you should blow into the chemical breath test at the police station when you’re arrested for Driving While Intoxicated in New York. Before reading this, you need to realize this advice is general advice, and not legal advice, meaning prior to blowing or not blowing in your particular case you should contact an attorney, because the particulars of your case could change this general advice.
Many people have asked me this question, and the simple answer is generally speaking you should blow into the chemical breath test at the police station. Refusing to blow into the chemical breath test at the police station will generally cause you to have your license revoked for one year, under what New York Law calls a refusal revocation.
That said, if driving is important to you, your family, and your job you need to realize the refusal revocation may also limit your right to hardship driving privileges and a pre-conviction conditional license.
Furthermore, practically speaking, if you don’t blow into the chemical breath test instrument at the police station, the officers can at times be less kind to you and you may end up spending the night in jail. Whereas, when you do blow officers tend to see that as a sign of cooperation and usually they’ll let you call for a ride home.
Another reason that it is generally best to blow is some county district attorney’s offices in New York have a policy prohibiting assistant district attorneys from reducing DWI charges where the defendant has refused to blow.
Lastly, not blowing into the chemical breath test at the police station can be used against you in your DWI case as “consciousness of guilt” evidence.
Not blowing into the chemical test device at the station is generally only advisable in serious felony cases or cases where somebody’s been killed, or seriously injured. In cases where the stakes are extremely high, I may advise somebody not to blow into the chemical test at the station. Otherwise, blowing into the chemical test at the station is generally advisable.
Prior to blowing into the device, or deciding whether or not to blow into the chemical breath test at the police station, please call an attorney. Our office is always available. Please call us, because every case is very specific and many factors can change this advice.
Tom Anelli is the managing attorney of Tom Anelli and Associates a statewide New York DWI defense firm. The corporate office is located at 272 West Jefferson Street, Syracuse, NY 13202.