Breath Test Refusal

A refusal occurs when a driver declines to submit to a chemical test after a lawful request from a police officer. This can be explicit, like a direct statement, or implicit, involving actions such as a prolonged delay or feigned inability to blow into the device. The critical legal point is that a breath test refusal is treated as a separate and serious violation of the vehicle and traffic law. For a refusal to be legally enforced, the officer must adhere to strict procedural guidelines. They must have probable cause, provide a clear warning about the consequences (immediate license suspension, revocation, and civil penalties), and offer the test in a lawful setting. When these conditions are met, a refusal is treated as an independent violation that can be used as evidence of consciousness of guilt in a criminal trial against the individual who committed the breath test refusal.

Upon recording a breath test refusal, the DMV schedules an administrative hearing. If the hearing officer confirms the refusal, the penalties are swift and severe. For a first refusal, your driver's license will be revoked for one year, you will be subject to a $500 civil penalty, and you will be required to pay a mandatory driver responsibility assessment. The penalties escalate dramatically for repeat offenders. A second refusal within five years can result in an 18-month license revocation or permanent revocation, along with a $750 civil penalty and the same responsibility assessment. It is important to note that these administrative sanctions are imposed regardless of the outcome of any related DWI criminal proceedings; even if you are found not guilty of the DWI charge in court, the DMV penalties for the breath test refusal will remain in effect.

The act of refusing a test can be used by prosecutors as evidence of consciousness of guilt in a DWI trial, making it harder for the defendant to argue their innocence. In some situations, a breath test refusal may be combined with other actions, such as resisting arrest, which can lead to additional criminal charges separate from the DWI offense. Furthermore, if you are convicted of a related offense, judges may consider the refusal during sentencing, which can lead to harsher outcomes. This includes longer probation terms or higher fines, as the refusal is viewed as an aggravating factor demonstrating a lack of cooperation.

Certain situations can make a breath test refusal even more serious, leading to enhanced penalties in New York. For example, if a driver has any prior alcohol-related offenses within the last five years, or an earlier refusal, New York law mandates harsher penalties. Refusal is also treated with extreme severity if the incident involves an accident that causes serious injury or death. In such cases, a prosecutor may charge additional felonies, and a judge is more likely to impose the maximum possible penalties upon conviction due to the compounded nature of the breath test refusal with serious harm. The following table provides a concise overview of how these penalties can escalate for a breath test refusal.

While most refusals lead to penalties, there are limited circumstances where a breath test refusal might be legally justified or its enforcement successfully challenged. One such instance is a legitimate medical condition that physically prevents a driver from providing a valid breath sample, such as severe asthma. In these cases, law enforcement might be required to offer an alternative test, such as a blood test. A refusal can also be challenged if it was the result of unlawful police conduct. This includes situations where the officer lacked reasonable suspicion or probable cause, failed to provide proper warnings about the consequences of a breath test refusal, or used coercive procedures. If any of these procedural defects can be proven, the refusal may not trigger the automatic administrative penalties.