Refusing the New York DWI Breath Test

To Take the Test or Not Take the Test
Consequences of Refusing to Take a Chemical Test

Like you, many people are not familiar with the complexities of DWI laws – you have too many other important things on your mind. But if you refuse to submit to a breathalyzer test after being arrested for a DWI, there are consequences to face.

Pending a hearing before an Administrative Law Judge with the New York State DMV, your driver’s license will be suspended. If you lose the hearing, your license will be suspended for six months. And you’ll face a financial penalty aside from losing your license.

Completely separate from the DMV case is the criminal court case. If you did in fact take the chemical test, your results can be used against you in court from the prosecution. However, if you refused to take the chemical test and your case goes to trial, the prosecution will strive to make the jury believe that you refused the test because you were conscious of your guilt.

So what should you do? The first thing you should do is contact Anelli Xavier immediately! New York State is unique because we have what is known as a qualified right. This qualified right allows motorists to contact a DWI lawyer before deciding whether to take or refuse a chemical test. It is called “qualified" because those arrested have a right to call and obtain advice from a DWI lawyer, but the police do not have to wait for that lawyer to show up to proceed with the arrest.

If you did take the breath test and the results showed that you were above New York’s legal limit of .08, your license will be suspended pending prosecution. But you will have the right to seek a hardship license to drive to and from work, school or medical appointments. At Anelli Xavier, our qualified team will push to get you a hardship license by convincing the court.

If you are convicted of a DWI and you lose your license for six months or a year, we will direct you to the Drinking Driver Program, which is now often a requirement ordered by the court. This program would permit you to obtain a conditional driving license during this time. In many cases, we can convince prosecutors to offer the lesser-included offense of Driving While Ability Impaired (DWAI), which is only a traffic infraction and has lesser penalties.