Yes, defendants can refuse a breathalyzer to provide chemical samples if they are pulled over on suspicion of DUI. Nationwide, about a fifth of defendants choose this path. But, since New York is an implied consent state, [1] this refusal comes at a price.

When New York drivers sign their licenses, they agree to provide chemical samples if an officer makes an appropriate legal request. So, chemical test refusal, or a chemical test failure, triggers the state’s Administrative License Revocation (ALR) process. This process could lead to drivers’ license suspension, even if the defendant is not convicted of DWI. More on that below.

Because of ALR suspension, DWI refusal cases are essentially two separate matters. In addition to the criminal case, there is a civil license suspension case. In both these matters, the potential penalties are quite severe. Therefore, your Rochester DWI attorney should be highly experienced in both these areas.

Issues Involved with the Decision to Refuse a Breathalyzer Test

Two Constitutional Amendments, the Fifth and Sixth Amendment, are a factor in chemical test refusals.

The Fifth Amendment gives defendants the right to remain silent. Silence is more than a refusal to say anything. Silence is also a refusal to do anything, such as pose for a picture or perform a DWI field sobriety test.

However, this right is not absolute. Courts have consistently held that ALR drivers’ license suspension is legal, even though the Fifth Amendment guarantees the right to remain silent. In fact, a number of states have gone a step further and passed refusal-to-submit laws. Courts have also upheld these laws, which make refusal to provide a breath or blood sample a separate criminal offense.

The Sixth Amendment guarantees the right to counsel. This right kicks in when the prosecution enters a “critical stage,” a point commonly defined as the filing of official charging documents.

Many argue that defendants should be allowed to consult with counsel before they agree or refuse to provide a chemical sample. That’s especially true since New York has a per se law. Defendants whose BAC content is above the legal limit are guilty of DWI as a matter of law. So far, this argument has fallen on deaf ears in court.

Should You Refuse a Breathalyzer Test?

Some people, including some DWI attorneys, say “no.” There is an old saying that if you fall in a hole, the first thing to do is stop digging. And, nothing good happens if you refuse to provide a chemical sample. The refusal antagonizes the police officer and could lead to drivers’ license suspension.

However, most DWI attorneys agree it’s best to refuse to provide a sample. As mentioned, New York has a per se law. So, people who provide chemical samples basically give prosecutors the evidence they need to obtain convictions. And, the state does not need your help in this area.

The ALR Hearing and DWI Attorneys

Drivers’ license suspension applies if officers had probable cause to demand a chemical sample. Generally, poor performance on the DWI field sobriety tests provides this evidence. So, if the defendant refused to perform the tests, the Administrative Law Judge might rule that the officer had no probable cause.

Alternatively, if the probable cause evidence is weak, a DWI attorney can often at least reduce the drivers’ license suspension period.

Rely on an Experienced DWI Attorney

You have a limited right to refuse to blow into a Breathalyzer. For a free consultation with an experienced Rochester DWI lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.




The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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