The Consequences in New York For Refusing a Chemical Breath Test in a DWI Arrest

As embarrassing a Drunk Driving, DWI or DUI arrest in New York may be, a conviction for any VTL 1192 crime is exponentially worse. Not only is there potential for incarceration and jail as well as significant fines and fees, a plea or post trial conviction for VTL 1192 also will result in a suspension of your license to drive and an installation of an ignition interlock device on your vehicle. In some situations it is not merely the suspension you will have to contend with, but a revocation of your drivers license in New York by the New York State Department of Motor Vehicles or DMV.

Revocation of your license for a first time offender for a DWI crime usually involves the offense of VTL 1192.3, sometimes known as either Common Law DWI or a Refusal DWI. The latter of these “types” of DWI, and the subject of this blog entry, addresses those crimes where you, after being advised of your rights and the consequences of failing to comply with a request to “blow,” refuse to provide a breath sample. More specifically, this blog addresses how, if all, your refusal can be used against you in a criminal prosecution.

As a preliminary matter, New York Vehicle and Traffic Law 1194 explicitly states that while a person has the right to opt out and decline to take a chemical test, such as the “blowing” at the precinct in an intoxilyzer, a refusal will result in the immediate suspension and potentially the ultimate revocation of that person’s driver license for one year.

Despite the above right and the associated ramification to your license to drive in New York, the question here is how, if at all, your failure is admissible in your criminal trial. Right or wrong, better or worse, that answer is also clear. While your failure to provide a sample is admissible in any trial or proceeding, it can only be introduced “upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.” Vehicle and Traffic Law 1194 [2] [f]. Sometimes this is referred to as “consciousness of guilt.”

It is important to note that even though the law clearly allows for prosecutors or other enforcement bodies to introduce your refusal in other proceedings, hearings and trials, the VTL 1194 hallmarks of fairness and equity must be present. Because of this, each case, and the outcome of any ruling, rises and falls on the particular facts of that proceeding.

Obviously, in the heat of the moment as terror and adrenaline are surging through your blood, whether you should “blow” or not is a difficult decision. While preventing the police from having scientific and chemical evidence of intoxication could assist you at trial down the road, you may find yourself without a license to drive even if you are ultimately exonerated.

To learn more about New York DWI crimes and laws, follow the links found throughout this entry.

Saland Law PC is a New York DWI defense firm and criminal law practice. The New York criminal defense attorneys at Saland Law PC both served as prosecutors in the Manhattan District Attorney’s Office’s DWI Unit.


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