New York DWI: Can You Refuse A Breathalyzer Test?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Being stopped for a DWI (driving while intoxicated) can be a New Yorker’s worst nightmare. If it happened to you, would you know whether or not you could refuse to take a breathalyzer test? The truth of the matter is that most people don’t know’ so we asked a 30 year New York criminal defense lawyer for his advice.

When can someone refuse a breathalyzer test in New York?

Elliot Schlissel, a New York DWI attorney whose practice represents residents of New York, Nassau, Suffolk and surrounding counties, says that this is one of the most frequently asked questions about DWI he receives. He explained what happens when someone refuses a breathalyzer test and provided advice on when to consent to it’ and when not to:

The law in New York states that walking on the streets is a right, but driving a car is a privilege. So, if the police ask an individual driving a vehicle is requested to breathalyze, he has an obligation to do so. If he doesn’t, the Department of Motor Vehicles (DMV) can suspend his license for one year (which means revoking the privilege to drive.)

I recommendation that individual breathalyze on a first DWI offense where no one is injured. If there is an accident where someone sustains a serious injury which could expose that individual to a felony and a possible long prison sentence, then I advise him not to breathalyze. In situations where someone has a prior conviction for Driving While Intoxicated, it is usually not in that individual’s interest to breathalyze if stopped and arrested within ten years of the first conviction. New York holds prior DWI convictions against you for ten years.

Are New York breathalyzer tests generally accurate?

New York uses the Intoxilyzer 5000 system for its breathalyzer tests, and although Schlissel says that it’s an extremely accurate instrument, he explained that where you get inaccuracies is when it is being utilized by someone who is not properly trained. He continued:

In some police departments, the arresting officer brings the individual charged with the DWI to the precinct and the arresting officer utilizes the Intoxilyzer to test the individual. The keys to it being accurate – to getting an accurate reading’ is putting in accurate information indicating the weight of the individual and using the instrument correctly.

In those situations where the police officers do not have a lot of training, they sometimes make mistakes in utilizing the instrument. In other police departments, they have technicians specifically trained to use the Intoxilyzer 5000 or other breathalyzer devices. Those technicians do a much more proficient job in utilizing the scientific instrument, and if done correctly, can be extremely accurate.

When we challenge these matters at trial, we challenge the procedures utilized by the officer administering the test, and that is how lawyers knock out the breathalyzer. You don’t knock out the results. You knock out the manner in which the device was used, and if it’s used improperly, then the results would be inaccurate and inadmissible in court.

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