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Refusing a Breath-Test or Field-Test on a Traffic Stop (New York State)

West Nyack, NY |

Assume you were pulled over in NYS, under the suspicion of DWI/DWAI.

If you were to refuse a Breathalyzer and/or a Field Sobriety Test, what exactly are the implications? I am currently aware that there is a mandated 1-year suspension with revocation for any individual under 21 that refuses to comply with the test (along with fines); but my question is more of on the individual's "record"

If an employer were to do a license-check, would they be presented with a copy that states the individual in question was convicted of a DWI, despite the fact they were never breath/blood tested?

Which brings another question: Assuming you deny the breath test again, what follow up action will Law Enforcement take? Can they take you straight into custody and attempt to get another sample?

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Attorney answers 4


I'm not sure how its done in NY, but in many counties in CA, you'd be held down by four big hairy cops and a nurse would still take your blood. Then, depending on the results of the blood test, you'd be charged with a DUI with a refusal. Curious to see what my NY colleagues have to say.

Jasen Nielsen


Any motorist in New York has the "right" to refuse a breath test. This includes a PBT, or alcotest pre-screening device at the roadside, and an admissible test of the motorist's BAC by a recognized device such as a Datamaster.

A motorist who refuses the pre-screening device can be charged with a simple traffic infraction.

A motorist who refuses the admissible breath test faces far more severe penalties for exercising his or her "right" to do so, despite that motorist's age. These penalties include a significant civil penalty and and a revocation of NY license or the privilege to drive in NY. If you are actually facing this situation, retain an experienced NY DWI attorney who can more fully advise you.

It should be noted that while the police will not hold you down and force you take a test, in the case of serious injury or death a court order may be obtained whereby the motorist involved must submit to a compulsory blood test. That test must be given by certain individuals under certain conditions to be admissible. Again, the full details should be given by a qualified attorney in private consultation.

Christopher I. Simser, Sr.
269 West Jefferson Street, 2nd Floor
Syracuse, NY 13202



It isn't exactly a situation I am currently facing, more so a concern that I was curious about. I was speculating whether it would be better to refuse all Police-Requested tests (SFST, PBT, etc) and to simply walk away with an infraction and/or suspension as opposed to having the DUI label attached to your name. But thank you for the insight, it is much appreciated.


Attorney Simser has given an excellent answer to your question. In response to your comment about whether it is advisable to take or refuse a chemical test, there is no one size fits all answer to that question. There are too many variables such as
Is this a first arrest for an alcohol violation?
Was anyone injured or killed in the incident leading up to the request,
Were any children in the vehicle at the time of the stop?

The answers to the above questions will help determine whether refusing a chemical test is the least of the motorists' concerns.

Answering this question does not create an attorney-client relationship between us. The answer given is for informational purposes only and is not a substitute for contacting an attorney licensed to practice in your jurisdiction and obtaining legal advice from such an attorney.



Mr. Greenspan, your follow up is appreciated. For this instance, let's assume the driver is a 20 year old male, no prior convictions, no other passengers within the licensed vehicle, and the stop was a "traffic stop" (under suspicion of DUI, but officially stopped as a traffic stop). Hope that clarifies some bit.

Michael Evan Greenspan

Michael Evan Greenspan


Please call my office to discuss


You will NOT walk away from this police encounter with merely an administrative penalty (license revocation/fines)

if you decide to "refuse" taking the police tests (field side or otherwise, roadside breath test)

They (the police) will still have PC (probable Cause) to arrest and charge you with VTL 1192 (3) common law DWI in NYS.

They will then take you back to the station and request a sample (breath, blood, urine, saliva) for the "chemical" test. This is the evidential test (can be used against you) to prove the other DWI in NYS called "per se" based on a BAC, under VTL 1192 (2).

Refusing this test will then yield a 1 year revocation of your privilege and a $500 administrative penalty. Plus you will still have to deal with the criminal charge of common law DWI.

Note: Until you have a "guilty plea" to one of the DWs the DMV will not allow you to take the DDP and get a conditional license to drive. It is the administrative leverage to force at the least a DWAI (VTL 1192 (1)). The proof here is way less than intoxication, it is any "extent" of impairment.

All the states have a "common law" standard DWI (or DUI or OUI) and a "per se" .08 DWI so refusing everything gives them (law enforcement) still at least one bite at the DWI apple.

Common law DWI in NYS is provable based upon the officer's opinion as to your demeanor, behavior, odor, driving, and any testing. It is legally, mental and physical incapacity to operate a car as a reasonably prudent driver. The main seminal case to look at in NYS is People v Cruz, 48 NY2d 419, 427 [1979]. It gives the standard for common law DWI.

Lawrence (Larry) Newman, D.C., J.D. Attorney at Law Doctor of Chiropractic Licensed in NY, PA, NJ, & FL The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Dr. Newman strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

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