Implied Consent and Right to Refusal in New York
New York is an implied consent state, meaning that it is implied that any person who operates a motor means within state lines has given personal consent to the administration of a chemical test. This can be in the form of blood, breath, urine, or saliva test, which has the purpose of calculating the blood alcohol content of the driver, and if he or she is driving in violation of driving while intoxicated (DWI) laws.
already with this being the case, you can in fact refuse a test if you feel it is in your best interest. Because of the implied consent laws, there is the possible for additional civil charges being brought against you should you refuse, making the situation more complicated. But if you understand the laws in place along with applicable factors concerning the time of action, you should be able to decide whether or not a refusal will work in your favor.
DWI Under New York Law
N.Y. VAT. LAW §1192 states that an individual may be charged with a DWI if they are found to be operating a means while the person has.08 or more blood alcohol content as shown by chemical examination of such person blood, breath, urine or saliva. It also states that an individual will be charged with an aggravated DWI is he or she has a BAC of.18 or more.
According to N.Y. VAT LAW §1193, the sanctions for a DWI in New York require that you be charged with a misdemeanor, which will most likely include a fine of no less than $500 and / or imprisonment in a penitentiary or county jail for not more than one year. For those charged with aggravated DWI, the sentence may include a fine of up to $2500 and / or a jail sentence of no more than one year.
As for the time of action for field testing, N.Y. VAT. LAW §1194 states that any person operating a motor means in New York shall be deemed to have given consent to a chemical test, for the purpose of calculating the alcohol/drug content of the blood provided. If an officer has reasonable grounds to believe the individual is in violation, within two hours of that person being arrested, they have the ability to request a chemical test.
New York does allow the motorist a “qualified right” to consult with an attorney before deciding to refuse or to submit a sample for chemical testing. already so, this right is “qualified” because a police officer does not have to wait for an attorney or allow the alleged offender to seek legal counsel if the act unreasonably obstructs the arrest and investigative course of action.
In N.Y. VAT. LAW §1194 (b), which details refusal of chemical tests, it mentions that a police officer, after telling the alleged offender that their license shall be closest revoked, must also fill out a written report if an individual refuses to take a chemical test. This report will be used to bring a civil sanction charge against you. Although a chemical test refusal is not a criminal charge, it is a “civil” or “administrative” transgression that you can in fact be convicted of. This method that a refusal can bring two charges instead of one, with the state of New York responsible for the administrative aspect of the case.
If you refuse to submit to a chemical test, you have the right to a Due course of action hearing before a DMV Administrative Law estimate. As for the possible punishments, the state of New York has dictated that a chemical test refusal will come with a 6 month license suspension and a $300 civil fine.
It is true that implied consent puts individuals in a tough position, considering that there will potentially be two charges against you. Depending on your personal situation, refusing a test may give you a better opportunity at fighting the much more serious and potentially life-changing charge of the two.
At this point, understanding your legal options and discussing the pending charges with a capable criminal defense attorney may give you a better plan of action. Since you do have a “qualified right” to speak with an attorney, take this opportunity to do so.
The main thing to remember in this scenario is that you always have the right to refuse a test, already though law enforcement will tell you that you have to take the chemical test. Although there will be an immediate revocation of your license while giving law enforcement probable cause to arrest you, it will not be a conviction, or definitive evidence of wrong doing, which may help your case in the long run.