Let’s say you had a glass of wine or a beer at dinner, are driving home from the restaurant and are pulled over by a police officer. The officer suspects you’ve consumed alcohol and asks you to exit the car, walk a straight line, stand on one leg, or blow into a hand-held breathalyzer. Should you take the field sobriety tests? Should you take the breath test on the side of the road? What if you are arrested and brought back to the police station where you are asked to submit to a chemical test? What should you do?
With respect to field sobriety tests, there is no requirement that a person who is suspected of DWI take a field sobriety test.
Field Sobriety Tests (FSTs) can include any of the following:
- walk and turn
- horizontal gaze nystagmus (“follow the pen”)
- one-leg stand
- romberg (balancing with your eyes closed)
- alphabet
- finger count
Field sobriety tests must be administered by the police officer in the prescribed, standardized manner. If any one of the standardized test elements is changed by the officer, the validity of the test is compromised. In other words, if the officer does not administer the test the exact way he or she was taught, your performance on the test may not be able to be used against you in court; or at the very least, the test result may not be given much weight.
Note that if you take a field sobriety test, the officer will seek to use that evidence against you at a later court proceeding. If you refuse to take the field sobriety tests, you will be eliminating what evidence an officer has to use against you at later hearing or trial.
With respect to the question of whether you should take a breath test or chemical test, the answer is that it really depends.
First, regarding the breath test at the side of the road, if you refuse to take that test, you will be issued a traffic ticket only. Your license will not be suspended or revoked. Moreover, if you refuse to take a breath test at the side of the road, you are limiting the amount of evidence that a police officer will seek to use against you at a later court proceeding.
With regard to the chemical test back at the police station, there is no clear answer and every case is unique. Factors such as the amount of alcohol consumed, over what period of time, the county you are in, whether or not there was an accident and whether or not you have any prior convictions for DWI or DWAI are all important questions that must be considered before any advice can be given.
Chemical Tests include samples of any of the following:
- blood
- urine
- saliva
- breath
New York state requires you to submit to a chemical test under New York’s “Implied Consent Law” if you wish to maintain your privilege to drive. Implied consent means that as a licensed driver in this state, you have implicitly agreed to submit to a chemical test if an officer has reasonable cause to believe you were driving under the influence of alcohol.
If you refuse to take a chemical test, it becomes a separate matter from your potential alcohol-related charge in criminal court and you will face distinct penalties with the Department of Motor Vehicles (DMV), whether or not you are ultimately convicted of any DWI-related offense.
If you are arrested for DWI and refuse to take a chemical test, your license will be immediately suspended by the criminal court judge at your first court appearance. However, within 15 days you are entitled to a DMV administrative refusal hearing at which time a judge will hear evidence and testimony and make a decision regarding license revocation. At a refusal hearing, the arresting officers will testify and the administrative law judge will determine the following:
- Did the police have reasonable grounds to believe that you were driving while under the influence of alcohol?
- Did the police make a lawful arrest?
- Were you given clear and sufficient warning that your refusal to submit to a chemical test would result in the immediate suspension and subsequent revocation of your license?
- Did you actually refuse to take the test?
If the judge answers “no” to any of these questions, your license will be returned. If the judge answers “yes” to all of these questions, your license will be revoked and you will also be required to pay a DMV fee. If this is your first offense, revocation will be for at least one year and your financial penalty will be $500. For a second offense, license revocation is for 18 months, with a financial penalty of $750. License revocation will take place even if you are found not guilty of the alcohol-related offense.
Each alcohol-related arrest is unique, with many complexities. It’s important to get an experienced New York DWI attorney on your side as soon as possible to help guide you through your case. LaMarche Safranko Law can help. We have more than 40 years’ combined legal experience handling DWI cases in New York and we’ll put our nationally recognized reputation and expertise to work, ensuring your rights are protected.
