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Expertise

Blood & Breath Tests

Did a Blood or a Breath Test Lead to a New York DWI Charge?

Have you been arrested for refusing to take a blood or a breath test? New York’s “implied consent” law states that anyone who is suspected of driving while intoxicated must submit to a blood or breath tests if properly requested by a police officer. The laws can penalize someone for refusing with a minimum one year license revocation.

In addition to the penalties for refusing, the fact that you refused can be used as evidence in your driving while intoxicated (DWI) criminal case. In addition, you will not be eligible for a hardship or conditional license. That is why it is important to seek legal counsel from an experienced Westchester and Bronx DWI lawyer as soon as possible.

Blood or Breath Tests

In New York, the overwhelming majority of chemical tests in DWI cases are done by taking breath samples. On occasion, a driver may be asked to provide a blood or urine test depending on the circumstances of the case. Each test must be given using very specific protocols to avoid any type of outside contamination. For example, blood tests in DWI cases must be done using special kits. Generally, when blood is taken, the area is swabbed prior to the blood test with an alcohol swab. However, when you are testing for the quantity of alcohol in the blood, such swabbing can lead to contamination. To preserve the evidentiary value of a blood test in a DWI case and to avoid any outside alcohol contamination, it is essential to use a swab that does not contain alcohol.

In addition, fermentation inside the tube after the blood is drawn can cause sugar in the blood to convert to alcohol. In order to avoid the potential for fermentation a certain tube containing a preservative must be used to collect the blood and then must be thoroughly mixed into the blood by shaking.

Breath samples have similar concerns. When testing the alcohol quantity in the breath it is essential to ensure no outside contamination. To ensure the breath is tested without a concern about alcohol contamination coming from the stomach or mouth, police officers are required to observe individuals that are about to be tested for 20 mins prior to the test to ensure that they don’t burp, belch or regurgitate. In addition, nothing can go into or come out of the mouth for 20 minutes such as gum or food.

It is important to hire New York DWI lawyers who understand these protocols and will ensure that any tests were conducted properly.

Penalties for Blood or Breath Test Refusal

Implied consent laws make the battle of fighting DWI charges that much harder to overcome. Refusing the tests do make it difficult for prosecutors to secure a conviction. However, the fact that you have refused the tests may still be used against you in trial, as a DWI attorney in the Bronx can explain.

The penalties for refusal might include the following:

  • First refusal: License revocation for 1 year minimum
  • Second refusal: Licensee revocation for 18 months minimum, if there a previous refusal or DWI conviction in the last 5 years
  • Third refusal: Likely will lose your license for life
  • Police officers generally cannot force you to take a blood or a breath test without a warrant. Therefore, you do have the right to refuse. Remember, however, that there may be complications from doing so and serious consequences to your ability to drive. Police officers must demonstrate that they have probable cause for pulling you over for drunk driving.
Contact a Former Prosecutor!

At Tilem & Associates, PC, our Bronx and White Plains DWI attorneys know how serious a DWI combined with the penalties for refusing a chemical test can be. If you have been arrested, you need a hard-hitting defense team. We have Attorney Peter Tilem, a former senior prosecutor who has handled thousands of criminal cases over the years.

We urge you to call us as soon as possible and request a free appointment with a DWI lawyer in the Westchester, Bronx or Manhattan area or elsewhere.

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