Test Refusals in New York State

An individual who is stopped on suspicion of drunk driving in New York State will likely be asked to submit to a Preliminary Breath Test (PBT) and to field sobriety tests (FST's). It is important to note, however, that FST's are generally not administered pre-arrest in New York City. Instead, drivers suspected of DWI in New York City will be asked at roadside to blow into a PBT and only given the choice to do FST's back at the police precinct, after already being under arrest. This NYPD policy is backward and wrong, since field sobriety tests are designed to help police officers establish probable cause to make a DWI arrest. However, this is NYPD protocol.

Field Sobriety Tests:

There are three field sobriety tests which are commonly administered by the police. These are, the Walk and Turn, the One Leg Stand, and Horizontal Gaze Nystagmus (HGN). When an individual is stopped on suspicion of DWI anywhere in New York State, except for New York City, the officer will administer these tests at roadside. Once the officer determines that an individual has failed one or more of these tests, the officer will have obtained probable cause to make an arrest and will have gathered evidence which can be presented at trial.

It needs to be emphasized that in New York, there is no legal obligation to submit to field sobriety tests. A driver is permitted to simply refuse to perform FST's. Whether to agree to perform FST's is a judgment call. If an individual takes them, the officer will most likely conclude that he/she is intoxicated and arrest him/her for DWI. However, if a driver refuses these tests, he/she will almost certainly be arrested and the refusal, while lawful, will be admissible at trial. While a refusal to perform FST's raises a negative inference, this inference is much weaker evidence of intoxication than video evidence of poor performance on one or more of these tests. A person who is intoxicated may be better off not submitting to FST's.

Preliminary Breath Test:

PBT's are handheld devices which are relied upon by the police to establish the presence of alcohol. They are not considered reliable enough to be used as evidence of a specific blood alcohol concentration at trial. If you are stopped on suspicion of DWI by a police officer in New York State, you are obligated to submit to a PBT if you have been involved in an accident or have been stopped for a traffic violation. If the officer has stopped you on suspicion of DWI but has not accused you of any particular traffic violation, then there is no legal obligation to submit to this test. A refusal to submit to a PBT is a separate traffic violation but cannot be charged as a crime. In New York City, a PBT is typically the only roadside test offered. Refusing to blow into a PBT will almost certainly result in being arrested for DWI but, since a PBT result is not admissible at trial, the limited case law in New York would suggest that a refusal to submit to a PBT is also not admissible at trial.

Evidentiary Breath Tests:

Evidentiary breath tests, which for historical reasons are referred to as “chemical tests” in New York, are the tests which produce the blood alcohol concentration (BAC) reading which is offered into evidence at trial. When you drive in New York State, you are deemed to have consented to taking one of these tests if you are lawfully arrested on suspicion of DWI. The law is clear that there is no constitutional right to refuse to submit to a breath test. However, there is a statutory right to refuse. In a typical DWI arrest, where there is no accident with injuries, the police will not force you to take a test of your blood alcohol concentration. An individual who has been arrested for DWI can simply refuse to submit to a breath test, but there are consequences for doing so.

If a person who has been lawfully arrested for DWI in New York State refuses to take a breath test, after being warned of the consequences for doing so, his/her license or privilege to drive in New York will be suspended for either 15 days or until a hearing is held at Department of Motor Vehicles. If the Administrative Law Judge at DMV finds that the driver has refused to submit to a chemical test, his/her license or driving privilege will be revoked for one year. In addition, there is a $500 civil penalty as well as $250 in surcharges each year for three years. Finally, the refusal can be used as evidence of consciousness of guilt in a subsequent criminal trial. The penalties are more severe for individuals who have a prior refusal within five years. In addition, there are enhanced penalties for holders of Commercial Driver's Licenses (CDL's).

Lawyers are often asked whether or not to take a breath test. There is no simple answer to this question. If the officer has made a mistake and you really have had little to drink, then you probably should take the chemical test at the precinct as well as the PBT. If you have had a lot to drink, it might be more beneficial to refuse breath testing, but this is a decision best made in consultation with a lawyer. In cases where there has been a serious accident, it may be that the risks of submitting to breath testing outweigh any potential benefits, but this also is a decision that should be made after speaking with a lawyer.

It is, of course, best never to drink and drive. However, since it is not unlawful to drink some alcohol and then drive, it makes sense to understand how many drinks it takes to get to the 0.08% limit. The number is different for everyone, and mostly depends upon a person's weight. There are BAC charts and calculators available which are helpful. Since DWI is both dangerous and expensive, knowledge and advance planning can help prevent a DWI arrest.

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