What Happens if You Refuse a Breathalyzer in NY?

Should you refuse a breathalyzer in NY? The answer is complicated.

If you are pulled over by the police and they ask you to blow into a breathalyzer, you probably have many questions. Am I legally required to blow into a breathalyzer? Will I be penalized if I refuse? Is it an automatic DUI or DWI if I refuse a breathalyzer test? Is the officer tricking me if he says I must blow into the breathalyzer?

The safest answer is “no,” you shouldn’t blow into a breathalyzer, especially in NYC. However, as discussed in the article, you should consider several factors when deciding whether to refuse a breathalyzer test in NY.

How Does Refusing a Breathalyzer Test Affect Your Case?

In New York, the prosecution can charge people for DUI two different ways. The first is if you drive a car and appear intoxicated. The other way is if you drive a car with a blood alcohol content (BAC) above .08. These two different ways to get a DUI are codified under the traffic law statutes V.T.L. 1192(2) and V.T.L. 1192(3). They are both misdemeanors. Subsection (2) involves a breathalyzer result, while subsection (3) does not involve a breathalyzer result.

In other words, you can be charged for driving while intoxicated even if you don’t blow into a breathalyzer. If you don’t blow into a breathalyzer but the police believe you are driving under the influence, they will charge you under subdivision (3). For instance, let’s say you refuse to blow into a breathalyzer. However, you drove into a ditch, reek of alcohol, have slurred speech, and can’t walk straight. In that case, the police can still arrest you under V.T.L. 1192(3).

On the other hand, let’s say you blew into the breathalyzer and your BAC was measured as .09. The legal limit in NY is .08, so you could be charged with V.T.L. 1192(2) because your BAC was over the limit. The police could arrest you for V.T.L. 1192(2) even if you appear sober.

Therefore, by refusing a breathalyzer test, you prevent law enforcement from bringing a case against you under V.T.L. 1192(2). However, if you display external signs of intoxication, law enforcement can still bring a DUI case against you under V.T.L. 1192(3).

If you do not display external signs of intoxication, then the prosecution has no case against you unless you blow into a breathalyzer and have a result of .08 or above. For that reason, refusing to blow into a breathalyzer reduces the likelihood that law enforcement can bring charges against you.

The Consequences of Refusing a Breathalyzer Test in NY

Although refusing to blow into a breathalyzer can reduce your likelihood of facing criminal charges, you will face civil penalties. Specifically, your license to drive in New York will be revoked for at least a year.

For many people, their life would be very difficult if their license was revoked for one year. They would be unable to drive to work, grocery store, and many other important places. For others, especially people in NYC who have access to great public transportation, it may not be a big deal if they cannot drive for a year. For people who don’t have to drive, the decision whether to blow into the breathalyzer is easier, because the consequences of refusing are less important.

If you refuse to blow into the breathalyzer, you are entitled to a legal hearing, known as a refusal hearing.

What Happens at a Breathalyzer Refusal Hearing?

At the refusal hearing, an administrative law judge will determine whether your license should be revoked for a year. The police officer who arrested you will testify at the hearing.

To make that determination, the administrative law judge must decide whether the following elements are established:

• The police had probable cause that you committed driving while intoxicated;
• The police lawfully arrested you;
• You were informed that your license would be suspended if you refused to blow into the breathalyzer;
• You in fact refused to blow into the breathalyzer.

If all of these elements are not established, then your license will not be revoked. For instance, if you were unlawfully arrested, then the court will not revoke your license.

Practically speaking, the police officer who arrested you oftentimes will not show up to the refusal hearing. If that happens, the judge will adjourn the case to another date, and in the meantime your license will be restored. If the police officer misses the second court appearance, then the refusal proceeding is terminated, and you will no longer face the risk of a license revocation.

The refusal hearing is a great opportunity to gather facts about your arrest and lock the police officer into his testimony. Consequently, even if you don’t win the refusal hearing, by getting testimony from the police officer, you can have a preview of the criminal case against you. Your lawyer can use that information to develop the best strategy for your criminal case.

Need Help?

If you are charged with a DWI in New York City, contact Cody Warner for a free consultation. Cody has extensive experience handling DWI cases and refusal hearings. He can navigate the system to help you fight to get your license back and get your criminal charges dropped.