When a driver is suspected of being under the influence of alcohol or drugs, police will often administer field sobriety tests when they execute a traffic stop. After the tests, or if the driver refuses the request, the officer will need to make a decision whether to make an arrest. If police decide to make an arrest, the driver will then be asked to submit to a chemical test for blood alcohol content determination.
New York is an implied consent state. This means that when a person operates a motor vehicle within the state, he or she has given consent to law enforcement to take a chemical test of a person’s blood, saliva or urine to determine the amount of alcohol present. Breath tests must be done within two hours of the arrest. Chemical tests must be done within two hours of the arrest or breath test. Whether or not a test has been administered within the two-hour time period has long been an issue in DWI cases. Notwithstanding the implied consent, a driver suspected of DWI can refuse to submit to a chemical test.
If a driver refuses to take the chemical test, his or her license is immediately suspended and revoked. This suspension will still be in effect even if the driver is not convicted of driving while intoxicated. The arresting officer will then complete a report indicating the reasons for suspecting the driver of being intoxicated, and also explaining that the driver refused to take a chemical test.
It is possible for the driver’s license to be suspended for one year. If the driver has refused to submit to chemical tests in the past or has prior DWI convictions, the time of revocation could increase to 18 months. In addition to the license revocation, if drivers are convicted of DWI they may also be facing criminal penalties.
Drivers who find themselves in these situations should seek the advice of an experienced criminal defense attorney as soon as possible. Each case will be different and will require a careful review of the facts to determine how to best protect your rights.