Written by attorney Jennifer Lynn McCann

Breathalyzer Refusal: Presumption of intoxication in New York

Recently, there has been a significant crackdown on driving while intoxicated offenders in New York. Many people erroneously believe that if they just refuse to take a chemical test, they can find a super lawyer to beat the charges. Unfortunately, even those of us who have obtained many acquittals for our DWI clients are limited with our strategies when defendants refuse chemical tests.

  1. When you refuse to take a chemical test in New York, there is a presumption of intoxication.

After you tell the cop that you will not blow into the intoxilizer, he will ask you again, then asks you to sign the refusal paper, proving that you were notified of your rights and chose not to take the test. The law presumes that you were over the 0.08% BAC. Without a chemical test, it is nearly impossible for your lawyer to refute that presumption.

  1. No conditional license for refusal defendants

While your DWI case is pending, your regular driver's license is typically suspended. However, you can generally apply for a conditional license to get to work, school, and medical appointments during the pendency of the case. However, if you have refused to take a chemical test, you will be denied the right to a conditional license until after your case is resolved. This can be anywhere from 3-18 months depending on the overcrowding in the courthouse, efficiency of the prosecution, and whether you go to trial or take a plea deal.

  1. Felony caveat

Just when you have decided that it is always better to take the chemical test so that you lawyer can hire an expert to refute the chemical test and you can have a conditional license during the pendency of your case, another monkey wrench is thrown into the equation: if your BAC is more than twice the legal limit, you will be charged with a felony DWI instead of a misdemeanor.

  1. Guaranteed Right Answer

Take a cab. A DWI trial with the requisite great lawyer and reknowed experts necessary to likely prevail against the District Attorney will cost you thousands of dollars. Additionally, you may lose your job, increase your car insurance rates, and obtain a criminal record. Furthermore, you are risking your life and the lives of everyone else on the road. You may think a taxi every time you have a drink is expensive, but it is surely cheaper than your bail will be.

Jennifer L. McCann

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