Should I refuse to take a Breathalyzer Test?

To refuse or not to refuse, that is the question. The problem is that there is no easy answer and, many attorneys have different feelings about whether you should refuse to take a Breathalyzer test in conjunction with an arrest on suspicion of driving while intoxicated.

Since the State of New York considers a driver’s license to be a privilege and not a right, it is subject to a condition that, upon acceptance you agree to submit to a chemical test if you are arrested on suspicion of driving while intoxicated. Whether you should refuse to take the Breathalyzer test requires knowledge of what will happen if you refuse.

If you refuse to take the Breathalyzer test, your license will be taken by the court upon your arraignment and you will be given a notice to appear at a revocation hearing that occurs at the DMV in the City of Albany. If you fail to appear at the hearing on the date scheduled your license will be revoked for a period of one year. If you appear at the refusal hearing and lose, your license will be revoked for a period of one year.

When you appear at the revocation hearing, you will see that the deck is stacked against you. The hearing is conducted by an ALJ that works for the DMV and the burden on the police is exceedingly low. In fact, while the burden is said to be on the police, pragmatically it is on the defendant to essentially disprove the officer’s claim that the protocol was conducted properly.

Thus, going into a revocation proceeding, you must at least prepare for the likelihood that you will lose your license for a year. And, this is true even if you ultimately prevail in the criminal case. In other words, regardless of the outcome of your criminal case — even if you are exonerated of all liability for the DWI — your revocation for refusing to take the Breathalyzer will continue.

But, there are benefits to not taking the Breathalyzer test because, it will make it more difficult for the prosecution to prove the charge of driving while intoxicated or driving while ability impaired. A reading from a Breathalyzer test can be compelling proof of your intoxication to a jury and, depriving the prosecution of this evidence forces them to prove through opinion evidence offered by the police that you were intoxicated. Of course, if you have committed to refuse to take the Breathalyzer, you should also refuse to take the standard field sobriety tests and AlcoSensor (the portable breath test administered at the roadside).

Since a revocation for refusing can stick even if you prevail on the DWI, you should think twice about refusing to take a Breathalyzer test. But, when the revocation of your license is the least of your concerns — such as, if someone has been injured or killed, you should not take the Breathalyzer test. While the police can petition the court for a warrant to compel you to submit to a blood test, there are plenty of cases where the procedures are not followed properly and the test results can not be used at trial. In any event, since staying out of prison is your primary and only concern, refusing to take the Breathalyzer test is an easy decision. But, that is the only time it is an easy decision. Under any other circumstances it is a toss up.