Should I Take the Breath Test?

Should I Take the Breath Test?

It is a shock when you realize that the Police Officer is getting ready to arrest you for Driving While Intoxicated. After being put through sobriety tests on the side of the road at 2 o” clock in the morning, the seriousness of the situation hits you. “Will you submit to a blood-alcohol test?”, the officer requests as you are recovering from walking the line and standing on one foot. What should you do? “Everyone,” says refuse to take the test” is a common statement I hear from my clients. The answer is not that easy.

The NYS Department¬†of Motor Vehicles Regulations and NYS Vehicle and Traffic Law state that driving is a privilege. Further, a refusal to take a chemical test whether by breath sample or blood will result in at least a year’s suspension or revocation. NYS VTL section 1194 provides for a DMV hearing separate and apart from the criminal court process. Even if your DWI is dismissed in the criminal court proceeding, DMV can take your license for a year. My experience is that 99% of the DMV Hearings result in a finding by the Administrative Judge that the driver refused. Whether or not to take the Chemical Test is, therefore, a very difficult decision. Damned if you do and damned if you do not.

As an attorney, I have received calls in the wee hours of the morning for almost 40 years. The Trooper will tell me that my client would like to talk to me. “Should I take the test?” A very subjective question: Does the client have a prior DWI? Was there an accident? Injury? It’s not easy to discuss because the officer is ever present. What is overheard can be used against the driver. There are times when the test will exculpate the driver. Their times when the test will exacerbate the matter resulting in Aggravated DWI. Only hindsight is 20/20.

As a defense attorney, I will sort it out in the first client interview. The best advice does not drink and drive or do not drive The ride home is a lot cheaper than the fines and legal fees.