Consent to Blood-Alcohol Tests in New York Comes with Lawful DWI Arrest

Recently, an on-duty New York police officer was arrested for drunk driving after attending a police fundraiser. The officer got into his police cruiser after getting kicked out the fundraiser twice for being too intoxicated but only traveled a few blocks before hitting a light pole. The officer was arrested and charged with Driving While Intoxicated and refusal to take a breath test. What many drivers in New York may not know is that they impliedly consent to chemical tests like a breath test to determine impairment simply by obtaining a driver's license.

People often believe that refusing to take a preliminary breath test will aid their case if they are arrested for DWI; however, refusing to take the test comes with its own consequences in New York that may be in addition to any drunk driving charges. Under New York's implied consent law, a person lawfully arrested for DWI by a police officer provides implied consent to take a chemical test of breath, blood, urine or saliva to determine blood alcohol content. Therefore, refusal to take a chemical test is a crime.

A person suspected of DWI may be subjected to two tests: a preliminary breath test and a chemical test. If the preliminary test shows a Blood Alcohol Content at or above the legal limit of 0.08 percent, then the officer will ask the person to take an additional chemical test. Even if a person refuses the preliminary breath test, an officer may still arrest the person based on other evidence that demonstrates the person may have been driving while intoxicated and ask the person to take the second test.

After the preliminary breath test or after arrest, the officer will ask the person to take the chemical test. Police cannot force a person to take a chemical test but a person cannot refuse the test without penalty. New York law requires the officer to inform the person that he or she will lose his or her license if he or she refuses the test. The person will also have to pay a fine, but the officer is not required to inform the person of the fine.

For a first refusal, a driver's license will be suspended for one year and the person will be fined $500. A person who refuses more than once or has been convicted of DWI within the last five years will lose his or her license for 18 months and be fined $750.

Drivers who have been involved in an accident may also be asked to take a preliminary breath test. A police officer may also require a driver to take a blood test through a court order even if the driver refuses.

The penalties and fines for refusing to submit to a chemical test are separate from and in addition to penalties and fines for DWI.

If you have been arrested for DWI, contact an experienced criminal defense attorney to discuss your legal options.