Refusal to take a breath test

A percentage of those charged with DWI will either refuse to take a breath test or may not be able to take a breath test at all such as when the motorist in unconscious following an accident. Other times a motorist may fail to provide an adequate breath sample to be tested. In these situations, the arresting officer may still charge that person with driving while intoxicated under VTL section 1192.3. This charge is based on other factors that establish intoxication such as slurred speech, blood shot eyes, and the smelled of an alcoholic beverage on the motorist’s breath.

The decision whether or not to take a breath test is an extremely important decision that will set the stage for the way the case is handled and may factor into the ultimate resolution of the case. There are both benefits and disadvantages to refusing to take a breath test. When confronted with having to choose between taking a breath test or chemical test, or not, it’s best to consult with a Suffolk County DWI lawyer, Gary S. Miller as soon as possible. Please note, there is a time limit to decide whether or not to submit to a breath test.

Considerations when considering whether or not to take the breath test

In Suffolk County, Nassau County and Westchester County there are many factors to take into consideration when determining whether you should take a breath test, or should refuse a breath test. None of the below should be construed as legal advice, which should be obtained through consultation with a DWI attorney.

In Suffolk County and Nassau County, failure to take a breath test will result in a license suspension for refusing to take the test with a hearing to follow at the DMV in Hauppauge or in Garden City. If the following the hearing, it is determined that you refused the breath test, your license will be revoked.

If you refuse a breath test in Suffolk County or Nassau County, the prosecutor will generally be reluctant to offer a reduction pursuant to the Suffolk County and Nassau County DWI prosecutorial guidelines.

By refusing a breath test, the prosecution generally will not have as strong a case should the case proceed to trial. In this regard, proceeding to trial with no breath test is better than proceeding to trial with a .24 bac reading.

If you did not consume any alcohol taking the breath test will show that you are not intoxicated or impaired due to alcohol.

If you have only a small amount of alcohol in your blood, than you may be better off taking a breath test.

If you are extremely intoxicated, you know because you just drank 14 beers, or you know you are going to register a very high bac reading, you may want to refuse taking a breath test.

If you have a prior DWI conviction in the past 10 years and you are intoxicated, you are generally better off refusing the breath test, giving yourself a better chance of receiving a favorable resolution at trial.