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White Plains Chemical Test Refusal Lawyer

Providing Effective Legal Representation at DMV Refusal Hearings


Whether you are stopped by a police officer for a traffic violation or erratic driving, the officer will usually ask you a litany of questions. The officer will observe you carefully when asking these questions to identify any indications that you are intoxicated. If you admit to drinking or the officer notices the odor of alcohol, impaired coordination, red eyes and/or slurred speech, the officer will generally ask you to participate in a series of standardized field sobriety tests (SFSTs) and to submit to a portable breath test (PBT). Although this request usually sounds more like a command, the officer cannot compel you to perform either SFSTs or a PBT.


Pre-Arrest Alcohol Screening


The officer wants you to submit to these tests because he is attempting to gather probable cause that you are violating an alcohol-related driving offense, such as DWI, DWAI or other similar offenses. Because officers have generally made up their mind that a motorist is intoxicated before requesting these tests, drivers almost universally fail SFSTs, but usually not for the reasons you would suspect. A roadside portable breath test is administered using a small handheld device that is never accurate. Since neither of these pre-arrest screening mechanisms are accurate, drivers generally have no reason to agree to either form of testing. If you have had absolutely nothing to drink, you might agree to perform SFSTs or a PBT because the results can prevent an arrest. However, SFSTs have a high enough false positive rate that something as innocuous as the flu, a leg injury, lack of coordination or vertigo might be sufficient to land you in jail.


Formal Chemical Testing of Breath, Blood or Urine


While you cannot be compelled to submit to these preliminary forms of screening, a formal chemical test of your breath, blood or urine is another matter. Once you are arrested for an intoxicated driving-related offense like DWI, the officer will ask you to submit to blood or breath testing (urine for drugs). Formal breath testing at the precinct or blood testing at a medical center cannot be declined without suffering negative consequences that include a mandatory driver’s license revocation and fine. Under New York’s “implied consent” law (N.Y. Veh. &Traf. Law §1194), licensed drivers are deemed to consent to a chemical test of breath, blood, saliva or urine if they are lawfully arrested by a police officer with probable cause to believe the arrestee was operating a motor vehicle while intoxicated.


Chemical Test Refusals


The law enforcement officer will conclude that you have refused if you persistently refuse to provide a specimen of breath, blood or urine, so your BAC can be tested. If you are unable to expel enough deep lung breath to register a valid test, the officer will consider your failure to produce a sufficient volume of air as a refusal.


If the officer determines that you refused the chemical test, you will be subject to a New York DMV hearing regarding your driving privileges in addition to a criminal case if you have been cited for DWI, DWAI or another alcohol-related driving offense. Because the DMW hearing is a separate civil proceeding, you can prevail in either the DMV case or the DWI criminal case and still lose in the other forum. The burden of proof in the DMV case is the “clearing and convincing” standard, which is much less cumbersome than the “beyond a reasonable doubt” standard used in criminal courts.


The issues at the DMV hearing will be much narrower than the issues in a DWI criminal case. The officer will need to establish that a sufficient legal basis existed to justify the stop and to request a chemical test. The officer also will have to establish that you refused the breath or blood test.


Penalties for a Refusal in New York


If the Administrative Law Judge who presides over your DMV hearing decides in favor of the police officer, you will face an immediate driver’s license revocation. The revocation for a first offense will be one year (18 months with a Commercial Driver’s License), which commences from the date of the hearing. The violation will be considered a first offense if you have not had a prior revocation for a refusal or a conviction of an alcohol or drug-related driving offense within the last five years. Even if you were subject to a suspension prior to the hearing, the clock does not start running until the date of the DMV hearing. You will also be subject to a $500 fine and a driver responsibility assessment for three years at a cost of $250 per year.


Should I Refuse Chemical Testing?


Our White Plains DWI attorneys regularly receive questions about whether a motorist should refuse chemical testing. The answer to this question really depends on the unique circumstances of your case, so there is no absolutely right or wrong answer. While a refusal will deny the prosecutor evidence of your BAC level, the prosecutor will still comment on the refusal as “consciousness of guilt.” The refusal also might have a more severe impact on your driving privileges than your criminal case. However, there are situations where refusing a chemical test might be advisable, such as:


Aggravated DUI (A-DUI)

Traffic Accidents Resulting in Injury or Death

Repeat Offenders

Felony Charges

At Greco  Neyland PC, our White Plains Chemical Test Refusal Criminal Defense Lawyers represent clients in White Plains and the surrounding areas facing alcohol-related driving offenses. We offer a free consultation, so you should feel free to call us today at (914) 358-9146 or click here to schedule your free consultation.