DWI – What Happens if I Refuse to Submit to a Chemical Test?

Under Vehicle and Traffic Law (“VTL”) § 1194.2(a), “[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at the direction of a police officer.” VTL § 1194.2(a). This is also known as “implied consent.”

If law enforcement pulls over a motorist having reasonable grounds to believe the motorist is operating a vehicle under the influence of alcohol, law enforcement will, among other things, ask the motorist to submit to a chemical test to determine blood alcohol content. Law enforcement officers conduct chemical tests on a motorist’s breath, blood, urine, or saliva after a person has been placed under arrest for suspicion of driving while intoxicated or after a Portable Breath Test (PBT) indicates the presence of alcohol in the motorist’s system. If a motorist refuses to consent to a chemical test after being read the “refusal warnings”, there are significant consequences. The motorist’s driver’s license and privilege to drive will be suspended. Law enforcement will fill out a document called a “Report of Refusal.” Law enforcement will then send the “Report of Refusal” to the Department of Motor Vehicles (“DMV”). The DMV will then schedule a “refusal hearing” to determine whether there were “reasonable grounds” to believe that the motorist was operating a vehicle after having consumed alcohol; whether law enforcement had probable cause to arrest the motorist; whether law enforcement properly warned the motorist of the consequences of refusing a chemical test; and whether a valid refusal occurred. If the “Refusal Hearing” does not occur within fifteen (15) days after the arrest, then the suspension is lifted. The motorists license remains valid pending the “Refusal Hearing.” The initial refusal suspension is either for fifteen days or until the date of the “Refusal Hearing”, whichever is sooner.

The DMV “Refusal Hearing” is separate and apart from the DWI proceedings in criminal court. If the DMV Administrative Law Judge finds all the above elements were satisfied after the hearing, then the motorist’s license will be revoked for one (1) year from the date of the “Refusal Hearing” and the motorist will be subject to a $500 civil penalty payable to the DMV. While these are separate penalties through DMV, the District Attorney’s Office in the DWI criminal case can use the fact that the motorist refused the chemical test as a “consciousness of guilt” at trial.

If you are charged with a DWI in New York State, please consult with an experienced attorney in the field to learn about the DWI arrest process, possible DWI defenses, and how to get your license back after a DWI arrest and subsequent driver’s license suspension.