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Thursday, November 10, 2011

Do I have to take a breathalyzer if I am stopped and suspected of DWI?

The asker went on to comment "I thought a refusal was an admission of guilt."  The questioner is correct.  A refusal to comply with an officer's request to submit to a breathalyzer test can be used by a prosecutor in their case against you as an admission of guilt.  They will argue that the reason you did not take the test is because you knew that you would fail it if you did.  However, that doesn't really address your initial question since it's more of a consequence of your refusal.

There is no constitutional right to drive; it is granted by the States. As a result, each State is free to set whatever conditions they want on your ability to exercise that right, so long as they are not discriminatory.  Usually these restrictions are done in the name of public safety as this one was.  New York State requires that if you are driving on their roads and an officer has probable cause to believe that you are driving under the influence, they can request you submit to a breathalyzer exam.  They cannot force you to submit to this test against your will.  Writer's Note: In cases involving serious accident or injuries, prosecutors may ask a judge for a warrant giving them permission to take your blood for analysis, even if you refuse to give it voluntarily.

In the more common case, your refusal if lawfully conducted can now be used as evidence against you at trial and the state will revoke your driving privileges for at least one year. You are entitled to have a "refusal hearing" at the Department of Motor Vehicles before your license is revoked within 15 days and you should be provided notice by the court clerk.

There are many other issues surrounding refusals. "the two-hour rule"; "right to counsel"; "should I blow?", "is the DMV hearing winnable?" to name a few.  I will try to address some other issues in future blogs so feel free to ask any specific questions if you want.

Legal disclaimer: All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. However, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website

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