Refusing a Chemical Test

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New York DWI/DUI: Refusal to Take a Blood, Breath, Urine, or Saliva Test

In the State of New York, if you are pulled over for Driving While Intoxicated (DWI) and you are asked to take a blood, breath, urine, or saliva test, do you have to take one? What happens if you refuse?

Implied Consent

New York’s “implied consent” laws require the driver to submit to chemical testing for the purpose of determining the amount of alcohol or drugs in the driver’s body.

The chemical tests are typically performed at the police station following a DWI arrest. The officer decides which test the driver must take. The driver has the right to arrange for his/her own testing by a physician, but only after submitting to the officer’s choice of tests.

Where there is probable cause of DWI, the implied consent laws also require drivers to submit to pre-arrest “breath tests,” often called “portable breath tests” (PBTs). These handheld machines measure blood alcohol concentration (BAC) from a driver’s breath. PBT results are typically less reliable than those of chemical tests conducted at a police station. And PBT results generally are not used against a DWI defendant at trial. Refusing to take a PBT is a traffic infraction.

Consequences of Refusing to Take a Chemical Test

The lack of a chemical test will make it harder for the prosecution to prove a DWI. However, your refusal can still be used against you in a criminal DWI trial. In other words, the prosecutor can tell the judge or jury deciding your case that you refused testing.

And, no matter how your DWI case ends, refusing to submit to a chemical test has serious consequences in New York, including:

  • First Refusal: 1-year license suspension.
  • Second Refusal: 18-month license suspension with a prior refusal or DWI conviction within the past 5 years.
  • Third Refusal: 18-month license suspension with a prior refusal or DWI conviction within the past 5 years

Can Police Compel You to Take a Chemical Test?

If you refuse to take a chemical test, police usually will not compel you to do so. The usual exception occurs if you were involved in an accident where someone is seriously injured or killed. In such an instance, the police can get a court order that allows them to forcibly take a sample of your bodily fluids for testing.

Get Help With Your DWI

If you’ve been arrested for or charged with DWI in New York or any other state, get help from an experienced DWI attorney. With DWI arrests, it’s important that you contact an attorney as soon as possible. Oftentimes, immediate action is necessary to protect your rights. Talk to a DWI attorney in your area to find out how best to proceed with your case.

Stephen J. Riebling, Jr. is a criminal defense attorney and partner with Riebling & Payton, PLLC, located in Westchester County, NY and has been practicing for nearly 25 years. To learn more about Mr. Riebling and the firm, visit Riebling & Payton, PLLC at