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Should you take a Breathalyzer if arrested for DWI?

Intox Machine

The Journal News has been following a story of a County Police officer who was off duty and crashed into a Scarsdale P.D. police car causing injuries to the Scarsdale officer. The off duty cop was then arrested for DWI. I was just reading online in today’s journal news and they reported that the police officer refused a blood alcohol (breath) test.

Many people don’t know that a person has the right to refuse field sobriety tests (i.e.: walk a straight line, etc.), but by virtue of having a driver’s license you give “implied consent” for an officer to demand a breath test. Refusing to submit to field sobriety testing and/or the Breathalyzer gives the authorities less evidence to prosecute you with at trial. However refusing the breath test has immediate implications on your driving privileges.


If you refuse a breath test your license is immediately suspended at arraignment and you must be scheduled for a DMV “refusal” hearing within 15 days. The hearing is scheduled by the court at arraignment. Usually the police officer does not appear at the first hearing and the DMV has to then restore your license and adjourn the matter. The adjournment is usually for 3 – 4 months in Westchester.

6a00d83451b82d69e200e5510289808834-800wiIt’s important to be represented by counsel at the DMV refusal hearing because if you win there is no penalty – you keep your driving privileges. But if you lose your driving privileges are suspended for 6 months and you are assessed additional fines directly from the DMV. The suspension and fines is totally separate and apart from any suspension you may face by the court. I have represented several people at a refusal hearing and while we all know that past results do not guarantee a future outcome at the time of this writing I have NEVER LOST a refusal hearing.

Whether you “refused” a breath test is a legal determination which is much more than whether you stated “no” when asked. The question really is did you refuse within the meaning of the law? Whether you were under arrest when asked to do a breath test, how long you had been under arrest, and specifically what refusal warnings you were given and when are all under scrutiny in a DMV refusal hearing.

license533The question of whether or not to submit to a breath test if arrested for DWI turns on what interest you areJAIL-BARS--I-TRIED-TO-CREATE--psd24339 trying to protect. If you’re looking to give the police the least amount of evidence the criminal prosecution then refuse the breath test. If the more important concern is your driving Privileges then take the breath test.

In the case of this officer he was involved in an accident with injuries and he refused the breath test. In my opinion that was a smart move. If you recieve a dui or need consultation please contact the Law Office of Palumbo and Kosofsky. By phone: 914-777-2990, toll free 1-877-99-NO-TIX or on the web: