Consequences of Refusing Chemical Test in NY.
Drinking and Driving Law is very complex but under VTL 1192.2 one can be charged with a DWI without taking the breath test. This arrest and charge is based solely upon the arresting officer’s obserations of intoxication, admissions, and other incriminating evidence. As many officer’s state, drunk driving suspects are easy to find – just by their own look and ability to converse.
The most damaging effect of refusing the DWI is the almost guaranteed suspension that follows. In New York State, you essentially agree that “when asked” you will provide a sample of your breath, blood, or urine when requested by law officials. The punishment if you refuse? A 1-year suspension of your Driver’s License for first time offenders…and possibly a life-time for repeat drunk driving offenders.
It is important to note that an alleged “Refusal” is subject to a hearing through the NY State Department of Motor Vehicles, however this hearing is very difficult to gain a favorable decision. The hearing Judge is employed by the DMV and the burden of proof set by the hearing is much less than a criminal trial’s proof beyond a reasonable doubt.
Lastly, a chemical refusal can also be used as “Proof of Guilt” in a criminal trial. While your failure to provide a sample is admissible in any trial or proceeding, it can only be introduced “upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.” Vehicle and Traffic Law 1194  [f]. Sometimes this is referred to as “consciousness of guilt.”
It is important to note that even though the law clearly allows for prosecutors or other enforcement bodies to introduce your refusal in other proceedings, hearings and trials, the VTL 1194 hallmarks of fairness and equity must be present. Because of this, each case, and the outcome of any ruling, rises and falls on the particular facts of that proceeding.
Obviously, in the heat of the moment as terror and adrenaline are surging through your blood, whether you should “blow” or not is a difficult decision. While preventing the police from having scientific and chemical evidence of intoxication could assist you at trial down the road, you may find yourself without a license to drive even if you are ultimately exonerated.
Chris Brown is an experienced Criminal Defense Lawyer and Personal Injury lawyer with Offices in Binghamton, New York. Chris Brown represents good people who have been charged with offenses throughout Upstate, NY. Chris Brown is Binghamton’s best DWI rated by third parties sources.
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