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Breaking(down) the Law with Jonna Spilbor

To Blow or Not to Blow

When I get a call at 3 a.m. from someone who’s been arrested and accused of driving while intoxicated, the question I am asked THE MOST is, “Should I take ‘the test’”?

The ‘test’, of course, is any of the chemical tests (blood, breath or urine) required whenever a police officer has made a lawful arrest of a person operating a motor vehicle on a public roadway who is suspected of driving while intoxicated, or while operating under the influence of alcohol or drugs.*

The most commonly used of these chemical tests (*when only alcohol consumption is suspected and the motorist is at a police station, as opposed to a hospital due to injury) is the “breathalyzer”. As the name implies, this device uses air within the lungs to measure the level of alcohol in a person’s blood (known as the “blood alcohol concentration” or BAC for short).

The concentration of the alcohol in the air in the lungs is directly related to the concentration of the alcohol in the blood. The ratio of breath alcohol to blood alcohol is 2100 to 1 (called the partition ratio), meaning the alcohol content of 2100 milliliters of exhaled air will be the same as for 1 milliliter of blood.

That concludes the math lesson. Now back to the burning question – to blow, or not to blow (or perhaps better put, to submit to a chemical test or not).

Why Do I Have to Even Think About Taking a Chemical Test?

Because the Department of Motor Vehicles (DMV) says so.

The New York Vehicle and Traffic Law (NY VTL) section 1194.2, section 2, states, in part: Chemical tests. (a) When authorized. Any 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…”

What Happens If I Refuse?

If you refuse to submit to a chemical test, upon your arraignment on the criminal charges (which will be treated completely separately), your driving privileges In New York (whether you hold a NY driver license or not) will be immediately suspended, and no “hardship” privilege will be granted.

You will be provided with a police generated “Report of Refusal” and given an administrative hearing date within 15 days of your arraignment on the criminal charges. The hearing will be conducted by an “administrative law judge” (ALJ for short) for the Department of Motor vehicles (DMV). If for some reason, the initial administrative hearing is adjourned by the Department, your driving privileges will be restored, but only temporarily, unless you ultimately prevail.

What Constitutes a Refusal?

Your conduct will be deemed a “refusal” by the testing officer if you answer “no” to a validly recited admonishment. Other, less direct means of “refusing” – such as saying nothing when asked to submit, or “blowing” without really blowing, or even requesting a lawyer prior to taking the test with no meaningful way to reach one – may also be deemed a “refusal”.

Am I Entitled to a Free Lawyer at the DMV Hearing(s)?

Nope. But you are entitled to bring retained counsel with you (or to authorize retained counsel to attend on your behalf). When it comes to handling refusal hearings, with all their legal intricacies, you would be smarter to hire an attorney to help you.

What if My DWI Case Gets Dismissed? Will My Refusal Also Get Dismissed?

Negative. In fact, the worst thing in the world that could happen to anyone facing both a refusal proceeding and a criminal charge, is to beat the criminal charge WITHOUT BEATING THE REFUSAL! Why? Because in that scenario, you will not be permitted to drive AT ALL for a minimum of one year. On the other hand, if you are found guilty or plead guilty to ANY alcohol-related offense, and are otherwise eligible for a conditional license, you will be permitted to drive conditionally for the period of your administrative revocation.


Chemical Test Refusal

$500 civil penalty ($550 for commercial drivers)

Revoked for at least one year, 18 months for commercial drivers.

Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal

$750 civil penalty

Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.

And this list is general, not exhaustive.

Can You Just Bottom-Line This for Me, Jonna?

I wish. But there simply is no right answer.

In my vast experience, I can say sometimes it is helpful to have a BAC reading when a client has no priors, especially none in the last ten years, wasn’t driving like a jerk and believed he or she was consuming alcohol responsibly (i.e. no “kegs stands”, no “shots” but rather had a glass of wine at dinner).

On the other hand, a BAC reading is additional evidence to be used against you (and sometimes NOT taking a test, can also be used as evidence). All we can do is our best to put you in a position to get the best possible result from the worst situations – in light of all the evidence against you, whatever that may be. That’s our job.

  • My philosophy is simple.
  • If you drink, get a ride.
  • If you get arrested, get a lawyer.

Put our number in your phone. (845) 485-2529 and you can use it 24/7 or whenever you need the best advice at the best price.

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