New York’s implied consent law states that when you are given a license and thus allowed to drive in the state of New York, you impliedly consent to have the police take a blood, urine, breath, or saliva test (the “chemical test”) to check your blood-alcohol level if you are arrested for drunk driving.
What happens if you refuse to take this chemical test? You won’t go to jail, but you automatically lose your license for a year and pay a fine of $500 for the first offense. Refusal for the second or subsequent time, or even if it is your first time to refuse but you had a DWI conviction in the past 5 years, can mean that your license may be suspended for up to 18 months with a $750 fine.
If you’re an out-of-state driver, the automatic suspension of your driver’s license due to refusal to take the chemical test may still be upheld due to the Interstate Driver’s License Compact.
Types of Tests
There are generally two types of tests that a police officer will conduct when you are arrested for drunk driving. The implied consent law states that, by virtue of your having a driver’s license, you have impliedly consented to take both types of tests when you are under the suspicion of driving while intoxicated.
The first test is the portable breathalyzer test that is administered roadside when your car is stopped. This is a preliminary test to check your (blood alcohol concentration).
Sometimes, this can be inaccurate, so once you are arrested and taken to the police station, the police will administer the second test.
The second test is the chemical test (which is a more accurate test to determine your BAC).
Aside from losing your license when you refuse to take the chemical test, your refusal can be used as evidence in a Driving While Intoxicated criminal charge against you. Because the police officer has no evidence of your blood alcohol content due to the absence of a chemical test, your refusal plus the police officer’s testimony about the conduct of your driving, your physical appearance (i.e., bloodshot eyes), or the smell of alcohol in your breath can all be used together as evidence to convict you of a common-law DUI, which does not require a particular blood alcohol concentration.
How to Use the Implied Consent Law to Your Advantage
If you believe your blood alcohol content is between 0.08% to 0.18%, the penalties are the same, whether you refuse to take the test or not (common law DUI vs. statutory DUI with 0.08% BAC). Thus, it’s better to allow the police to administer the test, and just get a good lawyer afterward to help you strategize your defense. There are several defenses one can use to fight a DUI charge, such as lack of probable cause to stop the car, failure to inform you about chemical test penalties, and failure to read you your Miranda rights.
With regard to the suspension of your license, a lawyer can always help you apply for a conditional license so you can still drive to and from work, to bring to and pick your kids up from school, to attend government driving programs, et. al.
If you have been charged with drunk driving, it’s always better to have a lawyer beside you to fight against your conviction and to ensure you can continue your life with driving privileges, whether convicted or not. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.