The Consequences of Refusing to Submit to a Chemical Test (Refusing to Blow)

New York Criminal Defense Lawyer John Pettinella often represents clients who refuse to take a breath test or other chemical test in connection with a Driving While Intoxicated (VTL 1192.2, 1192.2a, or 1192.3 among others) or Driving While Ability Impaired (VTL 1192.1) charge. The machines often used are the Intoxilyzer in New York City or the DataMaster in Westchester County.

The question clients often ask is “What are the consequences of refusing to submit to the test”? In New York State, there are no criminal consequences, meaning you cannot be charged with a misdemeanor or felony for the refusal itself. There are, however, consequences to your pending Driving While Intoxicated or Driving While Ability Impaired case that result from a refusal.

Specifically:

1. The refusal can be introduced at trial as “consciousness of guilt evidence”.
2. Your license to drive or privilege to operate a motor vehicle in New York (if you are an out of state licensee) will be immediately suspended pending the prosecution of your case.
3. Pending a Refusal Hearing which is conducted at DMV offices, your license to drive may be separately revoked for a period of time irrespective of the outcome of your underlying DWI or DWAI case.

The arresting officer is required to properly warn a person of the consequences of refusing to submit to a chemical test. The chemical test itself is the result of either an onsite breath screening or following an arrest. If the person refuses, the Court is advised at the arraignment and the defendant’s license is immediately suspended pending a Refusal Hearing and/or the outcome of the case. The defendant is then advised of the Refusal Hearing date.

The issues surrounding a Refusal Hearing will be addressed in a separate article.

The above consequences beg the question, “Should I refuse to submit to the test or not”? This is a complex question that cannot be answered in a short article. As with all serious legal questions, you should contact a qualified
New York Criminal Defense Attorney.