Breathalyzer: Should You Blow?

Breathalyzer - Should you blow

You’re on your way home from a night out with friends at the local bar when a police car pulls up behind you with the lights flashing. As you pull your vehicle off the road, your thoughts send you into a panic. Where is my license and registration? What if the officer can tell that I was drinking? Will I be asked to take a breath test? Will I get arrested? Although this blog will not answer all the potential questions that may go through your head, it will give you an idea about New York DWI laws and consequences of refusing to submit to a breath test and provide some situations where it may better to submit to a breath test and situations where it may be better to refuse to submit to a breath test.

New York’s Vehicle and Traffic Law §1192 prohibits driving a motor vehicle when your blood alcohol content (BAC) is .08% or higher. If a police officer has probable cause to believe you are impaired from alcohol, he or she may ask you to submit to a breath test to determine whether your BAC is above the legal limit. Because driving is a privilege, you are obligated to submit to a breath test. Therefore, there are consequences if you refuse a breath test. If you refuse to submit to a breath test you will be subjected to not only criminal proceedings but an administrative refusal hearing conducted by an administrative law judge for the Department of Motor Vehicles (DMV).

If you refuse to submit to a breath test, have no prior offenses and lose at the refusal hearing, there is an automatic 1 year revocation of your driver’s license for a first offense. If however, you have a prior DWI offense within the last 5 years, your driver’s license will be revoked for 18 months if you refuse to submit to a breath test and lose at the refusal hearing. On a first offense, you will be eligible to enroll in a Drinking Driver Program (DDP). Once you complete this course you will be able to apply for a conditional license with the DMV. If however, this is your second offense within 5 years, you will not be eligible to take the DDP. Once you have completed the DDP, you cannot take it again until 5 years has passed since the date of completion. As a result, you will not be eligible to apply for a conditional license.

Situations in which it may be better to submit to a breath test are as follows:

  • Second offense within 5 years and prior offense was a misdemeanor
  • If you possess an out of state driver’s license
  • You are pretty confident that your BAC is below .08%
  • You need to drive for work and cannot lose your license

Situations in which it may be better to refuse to submit to a breath test are as follows:

  • Second offense within 5 years and prior offense was a felony
  • You hold a Commercial Driver’s License (CDL) even if you were not driving a commercial vehicle at the time you were pulled over
  • You are pretty confident that your BAC is higher than .08%

Keep in mind that whether it is better to blow or not depends on each individual case and circumstances. It is for this reason that is important that you contact an attorney experienced in the intricacies of the New York DWI laws. The law firm of Spiegel, Brown and Fichera, LLP has offices in Poughkeepsie and Beacon and will provide an initial consultation free of charge.