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DWI FAQs


If I am Stopped for DWI, DWAI, DUI, or Drinking and Driving Should I Take the Breath Test or Refuse to Take It?

In New York a person who refuses to take a properly requested breath test faces the revocation of their driver’s license for a minimum of 1 year regardless of whether they are ultimately convicted of the underlying DWI charge. In addition, the fact that a person refused a breath test may be introduced as evidence against them at a trial for the DWI, DWAI. There is no hard and fast rule about whether it is better to refuse to take the test or take the test. However, you do have the right to consult with an attorney before you make the decision. It may be best to ask for a brief time to contact an attorney. Some jurisdictions have strict plea policy on DWI cases based upon the Blood Alcohol reading and based upon a refusal. A local lawyer should know the local prosecutor’s plea policy and be able to advise you. While refusing to take the test can have very serious consequences in New York, it is also true that a very high breath test can result in an even more serious charge such as Aggravated DWI. Your decision may also depend on whether you have any prior DWI arrests or convictions.

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What Is the Difference Between the Portable Breath Test Given on the Side of the Road and the Breath Test or Chemical Test Offered Back at the Police Station or at a Hospital?

A portable breath test that is offered at the scene on the side of the road is generally not admissible at trial and therefore will not constitute evidence against you. However, it may be used at a hearing to establish probable cause for you arrest and for the request to take the chemical test back at the police station. It is important to understand the two types of breath tests and the consequences for refusing them. If you are convicted for refusing a portable breath test it is a traffic infraction punishable by up to two points on your license and a fine of up to $150. However, if you refuse the chemical test you will be offered a hearing at the DMV before an administrative law judge. If it is found that you refused a properly requested breath test your license will be revoked for a minimum of 1 year and you will have to pay a Driver Responsibility Fee of $750 to get you license back. In addition, the refusal may be used as evidence against you in any DWI or related criminal case.

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I was Just Arrested for DWI am I Able to Drive in New York?

The short answer is yes, you can drive until you appear in Court at the arraignment and the Judge suspends your driver’s license. Generally, at the first appearance in Court following a DWI, if you blew over a .08 on a breathalyzer machine then the judge is required to suspend your driver’s license “pending prosecution.” If you refused to take the breathalyzer test than the judge is required to suspend your license and schedule an immediate hearing in the DMV to determine if your license should be revoked for the refusal. If your license is suspended pending prosecution then you may qualify for a “hardship” license and the judge may hold an immediate hearing to determine whether you are eligible for a hardship privilege.

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Do I Have to Perform the Standardized Field Sobriety Tests?

No, you do not have to perform the tests. Standardized field sobriety tests are used by the police to determine whether they have probable cause to believe that you are intoxicated and therefore request that you take a breath test or other chemical test. Generally, the tests can include the one leg stand test, walking a straight line during the walk and turn test, the finger to nose test and the horizontal gaze nystagmus test, or some combination of those tests. There are many reasons that a person may refuse to take those tests including weather conditions, pre-existing medical issues or other adverse conditions that can affect the results. The tests themselves are only reliable when administered and score precisely according to the proper procedure. Unlike the chemical test there are no repercussions for refusing a standardized field sobriety test.

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What Does the BAC Mean to Me?

BAC stands for blood alcohol content and is usually determined by the police performing a breath test, blood test or urine test after you are arrested for DWI. The results of the test can determine whether you will be arrested and charged with DWI and even in some cases will determine what the charges will be and whether you will be offered any plea bargains. In New York if you have a BAC of over .08 you can be charged with DWI and you are presumptively intoxicated. Over .07 you are presumptively impaired and below .05 you are presumptively not impaired or intoxicated. Between .05 and .07 there is no presumption but the BAC is a factor that the finder of fact may consider. A relatively new charge called Aggravated DWI can be charged in cases where the BAC is .18 or above.

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