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

Should You Take the Breath Test? A DWI Attorney’s Guide to Making the Right Decision

Picture this: You’re coming back from the club with your friends when suddenly you see police lights behind you. The cop pulls you over. Your heart’s beating, you’re sweating. The officer approaches the car, asks you to roll down the window, says he smells alcohol, and asks you to step out of the car. You step out. Your friends are nervous. Then he asks you the pivotal question: Will you submit to a breath test?

The decision you make in that moment can have serious impacts on your license, your case, your career, and your freedom.

About the Author

My name is Richard Hochhauser, and I’m a former DWI prosecutor and current New York DWI defense attorney. I’ve handled hundreds of DWIs as a prosecutor and hundreds more as a defense attorney. This perspective on both sides of the courtroom gives me a unique viewpoint that most attorneys simply don’t have.

In this guide, I’ll walk you through the different types of breath tests, the laws concerning these tests, and the practical implications of whether or not you should take the test—so that if you’re ever in this situation, you’ll know what to do.

What We’ll Cover

• The two different types of breath tests
• The difference between your criminal case and your DMV proceeding
• Your rights and what’s at stake

The Portable Breath Test (PBT): Roadside Testing

First, let’s discuss the portable breath test, also called a PBT. This is the handheld device that the officer will offer you at the side of the road. It’s crucial to understand the difference between this portable breath test and the chemical test that’s administered back at the station.

Key Facts About the PBT

The portable breath test is not calibrated nearly as often as the instrument back at the station. It doesn’t even give a full reading most of the time. The purpose of this portable breath test is simply to help the officer make a decision about whether to place you under arrest.

Should You Take the Roadside PBT?

Pros of taking the portable breath test:

• Even if you submit to the test and your reading is above the legal limit, that reading is not admissible in court against you
• It can only be used by the officer to help determine whether you’re intoxicated
• If you submit and your reading is below the legal limit, there’s a good chance you’ll be going home that day

Cons of refusing the portable breath test:

• While there are no license implications for refusing the roadside test, the officer will likely arrest you
• If you refuse the portable breath test, the officer will presume you’re refusing because you’re intoxicated

Bottom line: This portable breath test is not admissible at trial and has no impact on your license, but it will significantly influence whether the officer places you under arrest or lets you leave that night.

The Chemical Test: Station Testing

This is very different from the chemical test offered once you’re arrested and brought back to the station. This chemical test could be an Intoxilyzer or a DataMaster—different brands make these chemical tests, and each has unique characteristics that a skilled DWI attorney knows how to challenge.

Critical Differences

If you refuse the chemical test at the station:

1. It IS admissible at trial against you
2. There are automatic repercussions on your license

Criminal Case Consequences

If You Refuse the Chemical Test

Refusing the test usually leads to a weaker case for the prosecution. Think about it: the district attorney has to prove you’re intoxicated, and a huge piece of evidence they want to use is your blood alcohol content. Without that test, they don’t have your BAC.

How Can the DA Prove Guilt Without the Test?

In New York, there are two different types of DWI charges:

1. Per Se DWI: Based strictly on your blood level. If you’re .08 (the legal limit) or higher, that can result in automatic conviction.
2. Common Law DWI: The district attorney must prove you were impaired—too drunk to drive—even without a reading.

If you refuse the test, the DA will rely on:

• Observations of your driving
• Standardized field sobriety tests
• Whether you smelled like alcohol
• Your appearance (eyes, speech, etc.)

The Refusal Inference

New York has a strict rule: if you refuse to take the test and your case goes to trial, the jury will be told they’re allowed to presume you refused because you knew you were intoxicated.

Think about that from a jury’s perspective. When they hear the driver refused the test, they might naturally think it’s because the person had too much to drink.

However, a good DWI attorney knows how to combat these arguments. Jurors understand there are other reasons someone might refuse:

• They only had one or two drinks but were scared
• They received advice from friends or lawyers never to take the test
• They were impaired but not necessarily over the legal limit

Plea Negotiation Implications

Many District Attorney’s offices in New York, especially on Long Island where I practice, have a policy: if you refuse to take the test, they won’t offer any plea deal. They want to punish refusal by presuming your reading must have been very high.

Key takeaway: If you refuse the test, you may have to go all the way to trial because the DA won’t negotiate. However, if you submit to the test—even if you’re above the limit—as long as your reading isn’t extremely high (.08, .09, .10, even double the limit), the ADA will often still negotiate.

There’s no clear-cut answer: refusing usually gives you a better chance at trial, but refusing often means no plea negotiations.

DMV License Consequences

Remember, the roadside test has no DMV implications, but the chemical test at the station will have severe implications for your license.

If You Take the Test and Fail

• You will lose your license during your case
• However, you’ll be eligible for a conditional license through the DMV
• A conditional license allows you to drive for work, medical appointments, and family needs

If You Refuse the Chemical Test

• Your license will be automatically revoked for one year
• You are not eligible for a conditional license
• You may not be able to drive at all

Important Exception

There are DMV hearings available, and if you win that DMV hearing, you could actually keep your license. A good DWI attorney will know how to navigate these hearings.

The Bottom Line

Every DWI case is unique and must be analyzed individually. The decision of whether to take a breath test involves complex legal and practical considerations that can significantly impact your future. If you find yourself in this situation, understanding these factors can help you make a more informed decision—but consulting with an experienced DWI attorney is always your best option.

This information is for educational purposes only and does not constitute legal advice. Every case is different, and you should consult with a qualified DWI attorney for advice specific to your situation