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DUI breath tests: to refuse or not to refuse?

It is absolutely necessary that you can get to certain places every day. Your income depends upon you getting to work. Your children’s education depends upon you getting them to school. Your family’s health and well-being depends upon you getting to the doctor. There is a very good chance that you use a car to get to all of these places.

Losing your driver’s license can make life difficult, especially in a place like Newburgh where we do not have a well-established public transit system like New York City. It is why the question, “Should I submit to a breath test?” is one that is not so easy to answer when you are sitting on the side of the road with the flashing lights of a police cruiser in your review mirror.

Maybe you had just one drink and are unsure of whether you would register a .07 or a .08 blood alcohol content (BAC) on the breath test. Maybe you had a few drinks and you know that your BAC is above .08 and you are worried that submitting would secure a conviction for DUI.

As a driver, you should know the law regarding breath test refusal, because it might influence your decision during a stop.

Refusing = license suspension

Driving is a privilege not a right. It might not seem like a big difference, but it is. Either you agree to certain restrictions, limitations and conditions or you don’t get a license. The DMV does not inform you of them in person, but once you sign the papers and get your license, you have agreed.

One of these terms and conditions is the “implied consent” law. Loosely translated, if a police officer has reason to believe you are driving impaired, you are required to take a blood, breath or urine test.

Of course, you have a right to your privacy, control over your person. You can refuse to take the test. Under the implied consent law, however, there are consequences. Remember, you did agree to the terms of driving in New York when you got behind the wheel with your valid license.

Under New York vehicle and traffic laws, when you refuse to submit to a breath test your license will be subject to immediate suspension for a minimum of one year. You can challenge the suspension with the New York State Department of Motor Vehicles (DMV), but you must request a hearing within 15 days.

Refusal could also have collateral consequences

In 2012, New York adopted a regulation that enhanced penalties for persistent DUI offenders. If you have three violations in 25 years, the DMV can permanently revoke your license. The DMV process is a civil administrative process, and officials often treat a refusal as a conviction for purposes of the three-strike law. Remember, driving is a privilege not a right.

Should you refuse?

There is no “right” answer, because every case is unique. In some instances, refusing to take the test can help your defense. In other instances, refusing could cause more harm than good or have no effect at all. We know what you are probably thinking at the moment, “I understand the law, but what good does it do if you still can’t give me an answer to my question.”

We have left out one other important law available in New York; the law granting drivers the right to call an attorney for advice – even during a traffic stop. You should know the law and the potential consequences, but also know the number of a knowledgeable DUI attorney before you get behind the wheel. With both of these, you can make the best decision possible should you be pulled over for drunk driving.

Vis it our page about breath test refusals to obtain our contact information and learn more about your rights and options.

Important Information

COVID-19 (Novel Corona Virus)  Update 3-20-2020

By order of Governor Andrew Cuomo, beginning 3-22-2020, all non-essential business in New York state must close their physical offices in response to the rapid rate of positive reported cases of COVID-19 in New York State.

Although this will impact the in office and in person services that LIT can provide, we will still be working remotely from our homes to serve our existing clients and we will continue to serve the public on a remote basis with any new legal matters for which they may need assistance.

We as a nation have overcome great obstacles in the past and although the challenges that lie ahead of us as community, as a state, and as a nation are great, we will overcome them as our resilience as individuals, as a community and as a nation will allow us to prevail.

May all of you and your loved ones be safe and well .

Larkin, Ingrassia & Tepermayster, LLP


Should you have any questions please feel free to contact us at 845-566-5345

For more information regarding the COVID-19 virus please visit any of the following sites:

Centers for Disease Control and Prevention

NYS Department of Health

Orange County Dept. of Health

Ulster County Dept. of Health

For information and updates regarding court postponements or closings please visit:

NYS Unified Court System

9th Judicial District

3rd Judicial District