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Can you refuse a breath test?

Even if you feel sober enough to drive, driving under the influence can cause erratic driving behavior like speeding, not fully stopping at a stop sign or weaving between lanes. These traffic violations put you at a higher risk of an officer pulling you over. The cop may then notice that you have been drinking and consider charging you with driving while intoxicated. You may be able to pass the field sobriety tests. Yet New York law dictates that if your blood alcohol content is over 0.08%, you should not be driving. 

At that point, you may wonder if you can simply refuse the breath test. After all, you may avoid the hefty fines and loss of driving privileges that come with a DWI if they are not able to prove your intoxicated state. In New York State, that may not be the best idea. 

Results of refusing a breath test 

In most states, including New York, anyone who drives automatically gives implied consent to complete a breath test if an authority requests. Refusing to take the test in New York triggers a $500 fine and a one-year suspension of your driving license. Depending on the circumstances of the DWI charge you would have gotten, this can be as harsh a consequence as the DWI. Furthermore, the police officer can still charge you with the DWI if there is other evidence of intoxication. 

New York courts take refusal of the breath test seriously. In fact, the police officer must inform you at least twice that refusing to take the test will result in a license suspension. There is also a hearing within 10 days of the refused test to consider if you were in your right mind when you refused. Failure to show up at this hearing or a guilty verdict results in a 12-month loss of your license and blocks your ability to apply for a conditional or hardship license that would allow you to drive to work. 

In most cases, you would do better to take the breath test and contact an experienced lawyer to assist you with your DWI case.