Should you take a breathalyzer test when suspected of DWI in New York?

You’re coming back from the club with your friends, and all the sudden you got police lights behind you. Cop pulls you over. Your heart’s beating, you’re sweating .Cop approaches the car, ask you to roll down the window, says he smells alcohol, ask you to step out of the car. You step out of the car. Your friends are nervous. Then he asks you the pivotal question, will you submit to a breath test? The decision that you make in that moment and the rest of that night can have serious impacts on your license, your case, your career, [.and your freedom.
My name is Richard Hochhauser, and I’m a former DWI prosecutor and current New York DWI defense attorney now. I handled hundreds of DWIs as a prosecutor, I’ve handled hundreds of DWIs as defense attorney now. This perspective on both sides of the courtroom gives me a unique perspective that most attorneys simply just don’t have. I’m going to walk you through the different types of breath tests, the laws that concerning these breath tests, and the practical implications of whether or not you should take the test, so that if you’re in this situation you’ll know what to do. Now in this video, we’re going to discuss the two different types of breath tests. We’re going to discuss the difference between your criminal case and your DMV proceeding.

We’re also going to discuss what your rights are and what’s at stake. Let’s first discuss the portable breath test. Now that’s called a PBT. That’s the handheld device that the officer is going to offer you at the side of the road. Now it’s really important to understand the difference between this portable breath test and the chemical test that’s issued back at the station. Now this portable breath test is not calibrated nearly as often as the instrument back at the station. It doesn’t even give a full reading a lot of the time. The purpose of this portable breath test is just there to help the officer make a decision as to whether or not he should place you under arrest. Now that begs the question. Should you submit to this portable breath test on the roadside or shouldn’t you? The pros of submitting to this portable breath test is that even if you submit to the test and your reading is above the legal limit, that reading is actually not admissible in court against you. Again, it can only be used by the officer to help him make a determination as to whether or not you’re intoxicated. Now, if you submit to the test and your reading is below the level, there’s a good chance that you’ll be going home that day. On the other hand, if you refuse the test, while there is no implication on your license for refusing on the roadside, the officers likely to arrest you because if you refuse the portable breath test, he’s going to presume that you’re refusing because you’re intoxicated. So again, this portable breath test is not admissible at trial and has no impacts on your license, but it will have a big impact on whether or not the officer is going to place you under arrest or let you leave that night. Now this is very different from the chemical test that will be offered to you once you are arrested and brought back to the station. Now this chemical test, it could be an intoxilizer or a data master. There are different brands that make these chemical tests, and each of them have their own unique characteristics that a DWI attorney will know to how to try to beat those. Now these chemical test, if you refuse the test, then it is admissible at trial against you. And two, if you refuse the test, there are automatic repercussions on your license. So let’s discuss those two repercussions. First, let’s discuss the consequences to your criminal case on the decision of whether or not to take the chemical test back at the station. If you refuse to take that test, then usually that leads to a weaker case for the prosecution. Think about it, the district attorney has to try to prove that you’re intoxicated. A huge piece of evidence that they will want to use to prove that you’re intoxicated is your blood alcohol content. So if you refuse to take that test, then they won’t have a blood alcohol content.

So you may ask, how is the ADA going to prove me guilty without that test? Well, in New York, there are two different types of DWI charges. One is based strictly on your blood level. So if you’re .08, which is the legal limit or higher, then that can be an automatic conviction. On the other hand, there’s a second type of DWI, it’s called common law. And for that DWI, the district attorney has to prove that you are drunk, that you’re just too drunk to drive even without a reading. So if you refuse to take the test, the district attorney is going to have to rely on their observations of your driving, of your standardized field sobriety test of, did you smell like alcohol? What did your eyes look like? Were you slurring your speech? So the da will still have other types of evidence to prove you guilty, but importantly, they won’t have a chemical test to use against you. On the other hand, New York has a pretty strict rule that the jury is going to hear if you refuse to take the test. If you refuse to take the test and your case goes to trial, the jury will be told by the judge that the jury is allowed to presume at the reason that you refuse to take the chemical test is because you knew that you were intoxicated. Think about that. Think about if you’re a jury and you hear that the driver refused to take the test. Naturally, the jury might think that the reason that you refuse to take the test is because you had too much to drink. Now a good DWI attorney knows how to combat those arguments. A good DWI attorney knows that jurors also know that there are other reasons someone might refuse to take test. Maybe because they only had one or two drinks and they were scared to take the test. Or maybe they watched a video like this and heard from their friends or other lawyers that they shouldn’t ever take a test. So they refused doesn’t necessarily mean that the person was intoxicated, doesn’t necessarily mean that their blood alcohol content was over the limit. Maybe they were just impaired. Maybe they only had a drink or two, but we’re scared in those cases.

A good DWI lawyer can still argue to the jury successfully. And we’ve done it dozens and dozens of times that just because someone refuses to take the test does not necessarily mean that they’re intoxicated. Now the other thing to keep in mind for the criminal case, [and this is a downside to refusing the test, is that many of the District Attorney’s office in New York, especially in Long Island where I practice, if you refuse to take the test as a policy, the DA’s office won’t make you any type of plea deal. They want to punish you for refusing to take the test. They want to presume that if you refuse to take the test, that you’re reading must been very high. So if you refuse to take the test, sometimes you have to be willing to go all the way to trial because the da is not going to want to negotiate .On the other hand, if you submit to the test, even if you’re above the limit, as long as you’re reading is not super high, the ADA will still negotiate. So if you’re a .08 .09 .10, even double the limit, sometimes the ADA will still negotiate your case. So there’s no hard set rule. If you refuse to take the test, usually you have a better chance at trial. On the other hand, if you refuse to take the test is a good chance the ADA isn’t going to negotiate with you. So there really is no clear answer and you have to really analyze this on a case by case basis. Now let’s discuss the DMV consequences of whether or not to take the test. Now remember, the test on the roadside is different. There’s not going be any DMV implications for whether or not you take that roadside test, but the question of whether or not you take this chemical test at the station will have severe implications on your license. If you do take the test and you’re over the limit, you will still lose your license. During the tendency of your case, however, you will be eligible for a conditional license through the DMV. Now this is critical because a conditional license will still allow you to drive for work, for medical appointments, and similarly for your family’s needs. However, if you refuse to take the chemical test, you will be warned that your license will can be automatically revoked for one year. As part of that revocation, you are not eligible for conditional license. So if your license gets taken away for refusal, there’s a chance that you cannot drive at all. Now there are caveats to this that a good DWI attorney knows. There are DMV hearings which will talk about in a moment. And if you win that DMV hearing, you could actually keep your license.