To Blow or Not to Blow: When Should You Take a Breathalyzer?

I’d like to take this opportunity to introduce myself. My name is Louis C. La Pietra and I am honored to have been appointed the new Associate Counsel for the New York State F.O.P., Empire State Lodge. I am a retired NYPD Sergeant Special Assignment where I served as Managing Attorney for Legislative Affairs before working in the Giuliani and Bloomberg Administrations as Legislative Counsel for the Criminal Justice Coordinator’s Office and serving on the faculty of the John Jay College of Criminal Justice.

In my current practice, I represent many Law Enforcement Officers and their families. One of my main areas of concentration is Driving While Intoxicated (DWI) cases. Many of us have been involved in these types of cases whether as an arresting officer or perhaps hearing of a friend or family member who may have been arrested or stopped for Driving While Intoxicated. In this article, I will offer information useful to our membership on one issue that commonly arises when someone is stopped and/or arrested for DWI.

Should a Suspect Refuse a Chemical Test for Driving While Intoxicated?

Lawyers (including this one) tend to answer many questions posed to us with "it depends." There is no simple answer to the question: "Do I blow, or not?" There are significant civil consequences of refusing a chemical test, even if the person is found not guilty of the original DWI charge. The penalties include a one year license revocation, $500.00 fine and New York DMV assessment of $250.00 per year for three years.

Notwithstanding these "civil" consequences there are many factors to be taken into consideration when deciding whether to submit to the test: "Was there an accident?" "Was anyone injured?" "Is the suspect a multiple offender?" "Is this a Felony charge?" Other factors include whether or not the person needs to drive; whether the test result is likely to be well above the legal limit of a blood alcohol content (B.A.C.) of .08, and the county of arrest. (Different District Attorney’s Offices have different plea bargaining policies depending on the B.A.C. result assuming the case is not going to trial.)

When my telephone rings at 2:00 AM because a client (including the occasional Law Enforcement Officer) is in custody and needs to know whether he should take the test, I often ask him what he drank¸ how much, and when. I also ask him what he ate and what medications he takes. Each case is different and there are many factors that must be considered by the prudent attorney.

Thus, as a General rule, and depending on the answers to these questions, here is what I have advised in the past:

If There has Been an Accident Involving Death or Serious Injury - Refuse the Test

In this case the civil consequence does not matter because Police will obtain a compulsory test which voids the refusal for DMV purposes;

If the DWI charge will be a Felony ( prior conviction of DWI within 10 years) - Refuse the Test

Here, if the defendant is convicted, he will likely receive a license revocation from the court as part of his sentence for at least one year.

If the DWI charge is a Misdemeanor and the Person Needs to Drive - Take the Test

In this situation the person with a high B.A.C. reading will still be eligible for a Conditional License pending conviction which will be converted to a full license following completion of a Drunk Driver Program. On the other hand, a refusal will mandate that person stay on the conditional license longer than if he had taken the test.

If a Person "CREDIBLY" Claims to Have Only Consumed Enough Alcohol to Blow Less than 0.08- Take the Test

In almost all cases, as law enforcement officers we charge the misdemeanor of Driving While Intoxicated under VTL § 1192 (3) to those persons who refuse the test, and not with the traffic violation under Driving While Ability Driving While Ability Impaired under VTL § 1192(1). In that case if the person had not consumed enough alcohol to produce a chemical test result of greater than 0.08, they may actually end up with a higher charge than the person would have in the 1st instance.

In sum, it would appear that unless the case involves a serious injury or death or is charged as a felony, it is generally prudent to submit to the chemical test. Of course, these scenarios are for illustrative purposes only and one should always consult with an Attorney who concentrates in this area of the law before making a decision.