DWI & DUI In New York: Should You “Blow” or Take a Breathalyzer if Arrested for Drunk Driving in New York

Drunk Driving in New York – whether called DWI or DUI – is such a serious crime in New York City and throughout the State of New York that specific court rooms are set up solely to prosecute alleged drunk drivers. Many of these defendants wondered at the time of their arrest whether or not they should “blow” into a breathalyzer or intoxylizer. When I first started my career as a Manhattan prosecutor I heard this question asked and I routinely hear it asked to me today as a criminal lawyer. In fact, New York DWI lawyers and DUI attorneys constantly are bombarded with the question of whether or not a person should “blow” or refuse to take the breathalyzer when arrested for DWI. So what is the answer? Should you or should you refuse or blow when arrested for VTL 1192?

Background on New York City DWI Arrests First, it is imperative to understand that when you are initially arrested for Driving While Intoxicated in New York, police officers often have a machine in their vehicle. The result from this breathalyzer is not admissible in a New York criminal court. Therefore, whether you blow a .16 or .06, it will not be used against you in a court proceeding. However, the reading obtained will assist in forming the basis or probable cause for your ultimate VTL 1192 or DWI arrest.

DWI Procedure at the Precinct Once you are arrested and taken into custody, the police will (or should) read you your Refusal Warnings and then ask you to blow into an intoxilyzer. When being read these rights, the police should also be videotaping you. Like the breathalyzer, this machine will read your BAC. Now, the question likely is in your head…should you blow or not?

Negative Consequences of a DWI Refusal

New York law is very strict on refusals. If you refuse to blow, your license in New York will be revoked for a year (subject to a Refusal Hearing with the Department of Motor Vehicles). It is critically important to recognize that even if you are ultimately acquitted of the DWI, your refusal is not dismissed. Additionally, many District Attorney’s Offices will not make an offer to a defendant who refuses. Therefore, if you are close to or slightly above the legal limit in a case where there would normally be a non-criminal offer, refusing could hinder your ability to get such an offer.

Benefits of a DWI Refusal If you ultimately refuse to blow into the intoxylizer at the precinct, there are serious ramifications, but also potential benefits. Because you are being videotaped, if you appear sober in your words, mannerism and conduct, you may have a stronger defense. If you blow into the machine and get a reading of .12, for example, your conduct and mannerism will certainly be valuable, but prosecutors will have this scientific reading as a sword to use against you at your trial. If you do not provide a sample, then the evidence of your intoxication will be the video of you and the testimony of the officers without scientific evidence. It does not take a criminal defense attorney to explain that the lack of scientific evidence, coupled with a “good” video of you at the precinct, will give you a leg up on a trial should you decide to pursue that route. Here, of course, the caveat is that the video is actually supportive of your sobriety. If you are stumbling, vomiting, or slurring your speech, then your failure to blow will be less valuable.

The Answer: Refusal or Blow Unfortunately, there is no correct answer. If you are extremely intoxicated and you might blow a .16, .18 (Aggravated DWI) or even higher, then maybe you should not blow. If you cannot afford to have your license revoked because you must have it for work, maybe you should blow (there will be a temporary suspension regardless). Make no mistake, if you are not a stumbling drunk, failing to blow may strengthen your case at trial by not providing any scientific evidence to prosecutors. At the same time, however, not blowing may also make obtaining an offer much more difficult.

The answer to this age old questions is that there is no general answer. Neither this blog entry nor any DWI website will have the answer for you in your particular case. While it may not be easy, if you have counsel, the police should permit you to make a phone call before determining whether to blow into an intoxylizer. Use this opportunity to call your attorney so he or she can quickly get some information to answer this question specifically in your case. Regardless, the answer to this question will likely be an on the spot judgment call.

Crotty Saland PC is a New York criminal defense firm representing clients in Driving While Intoxicated and drunk driving related crimes in New York City and the region. Prior to starting the law firm, our two founding New York criminal lawyers served as prosecutors in the Manhattan District Attorney’s Office.

For a wealth of information on New York DWI crimes and New York DWI laws, please follow the highlighted links to our website. There you will find legal analysis of recent DWI case decisions, DWI statutes and other relevant information. Moreover, a review of the NewYorkCriminalLawyerBlog.Com will also reveal this information.

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