One of the most asked questions I have heard from my clients over the years is: "Should I submit to a chemical test (breathalyzer, urine, blood) if I am stopped by the police while driving?" The answer depends on a number of factors, and particularly upon the unique circumstances of each driver.
The general rule is that a refusal to submit to a chemical test if properly requested by the police will result in a temporary license suspension and , ultimately, a license revocation. That is because every driver in New York State has been "deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood..." (VTL Section 1194 - 2 (a)). A refusal to submit to a chemical test, unless ordered by the court, must be honored by the police, but the refusal will trigger a suspension of the driver's license (up to 15 days) and the scheduling of a "Refusal Hearing" (VTL Section 1194 - 2 ©). At such a hearing, conducted at the Department of Motor Vehicles by an Administrative Law Judge, the sole criteria are limited to whether the motorist was accurately informed of the consequences of a refusal after a lawful police stop, and that the motorist did in fact refuse to take the test. The consequences of a finding of a refusal are a license revocation for at least one year (for a first offense) plus a civil penalty of at least $500.
The obvious reason why a motorist would opt to refuse a request to take a chemical test is that the evidence from such a test can be used in court to prove that the motorist was either impaired or intoxicated at the time that he/she was operating a motor vehicle. VTL Section 1192 details the offenses which can result in criminal sanctions:
VTL Section 1192-1 = Driving while Impaired. A reading of between .07 and .08 of one percentum by weight of alcohol in the person's blood (see VTL Section 1195. This is a violation of the law, but carries a sanction of up to a $500 fine, a jail sentence of up to 15 days, and a 90 day license suspension upon conviction.
VTL Section 1192-2 = Driving while Intoxicated. A reading of .08 or more is prima facie proof of intoxication. This is a misdemeanor and carries a fine of up to $1000, a jail sentence of up to 1 year, and a mandatory license revocation.
VTL Section 1192a = Aggravated Driving while Intoxicated. A reading of .18 or more is prima facie proof. In addition to the other penal sanctions and a fine of up to $2500, a conviction requires the installation of an ignition interlock device in an automobile as a condition of any probationary sentence.
VTL Section 1194 = Driving while Ability Impaired by Drugs. This is most often proved by a urine or blood test, coupled with the observations of the police officer. The penal sanctions are the same as for Driving while Intoxicated.
VTL Section 1194a = Driving while Ability Impaired by a combined influence of drugs or of alcohol and any drug or drugs..This is also a misdemeanor, and carries the same penal sanctions as above.
Additional penalties can be imposed on the driver with a commercial drivers license.
Since an important part of a prosecutor's case in court is the chemical test reading, a driver may choose to refuse a test, with the sanction of a license revocation, in order to preserve his/her ability to more effectively defend against the DWI charge at trial. Among the factors which need to be considered are the following, and must be viewed under the totality of the circumstances:
- Is this the motorist's first offense?
- How much has the motorist consumed before driving? This is important
because the plea bargaining guidelines take into account the total amount
of alcohol in the blood (a standard cutoff is .13 in Nassau and Suffolk
Counties). - Was the motorist involved in an accident?
- Were there any injuries (or fatalities) as a result of an accident?
- What is the current status of the motorist's license?
- Has the motorist been convicted of a prior DWI within the last 10 years?
If so, a conviction on the new charge will be a felony (VTL Section 1193). - Does the motorist possess a commercial driver's license, and is the
license needed for work purposes?
Even if the motorist refuses to take a chemical test, the prosecution may be allowed to argue to a jury that the refusal to take the chemical test can be viewed as evidence of consciousness of guilt (VTL Section 1194 - 4).
Therefore, the consequences of a decision not to submit to a chemical test are important, and can have the competing issues of losing one's full license privileges in exchange for preventing the prosecutor from using the results of such a chemical test at a criminal trial.
All of the factors must be discussed with an attorney within 2 hours of being arrested for a violation of any section of VTL 1192, and must be fully reviewed prior to a trial or prior to a decision to negotiate a plea.
