Expert Advice When You Need It Most
Posted over 2 years ago. Applies to New York, 2 helpful votes, 0 comments
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DWI Arrest and Whether To RefuseFirst, the question often arises as to whether to take the breath test after being stopped for DWI. This is not a simple answer of always do one thing or the other. You should always call an attorney before making a decision, so they can listen to your voice and at least give you some idea beforehand. You can also check out my prior Guide as to whether to take the test. However, if you choose to refuse the test, then a series of events occur that are the basis of this Guide. First, expect that the police will be videotaping your every move while you're in police custody, so act accordingly. Stay still and stay quiet. Make no verbal statements that will come back to haunt you later. Ask to call your attorney before any test. That may give you a little more time to think it over and, of course, get a little more sober under normal circumstances. 2
What constitutes a Refusal to Take the Breath TestYou don't actually have to verbally say "No" in order to refuse to take the breath test. All the police have to do is read you the DMV warning and even if you do nothing, it is considered a refusal by DMV. I have had clients who were completely unconscious who were considered refusers by the DMV for purposes of this Hearing. Your best bet is to vacillate and question everything for as long as possible. However, remember, the police must give you the test within 2 hours of your arrest time. If you drag things out past that time limit, then the test results are inadmissible in court. The police obviously know this too, so if you're getting close to the 2 hour limit, they'll simply advise you one last time and then determine that you refused. 3
Paperwork involved in a RefusalThe police will put before you a written document that gives you the opportunity to write in that you refuse. It is not necessary for you to write anything on that paper. In fact, its best if you don't write anything because lots of times, your handwriting "gives you away" because it looks sloppy and the inference to be drawn is that its sloppy because you were intoxicated at the time. You may simply decline to write on the paper at all and refuse to sign it as well. Your word alone is sufficient to refuse and even that is unnecessary. You may simply sit quietly and say nothing to anyone regardless of what they say to you. As long as the police have read the refusal warning to you and you have not taken the test, that will be considered a refusal by the DMV and your license will be revoked for at least six months after which time you will have to go through the entire procedure to obtain a license again. Additional ResourcesRelated Questions2 Attorney answers: 
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