Long Island and NYC Implied Consent Law
Under New York State law, driving is considered a privilege and not a right. The courts have ruled that a person arrested on suspicion of drunk driving must submit to a formal breath test for blood-alcohol content (BAC). This is known as the implied consent law.
A "Breathalyzer" refusal therefore has severe consequences, punishable by automatic revocation of your driver's license for 12 months, additional fines and the presumption in court that you refused the test because you knew you were drunk. And yes, you can still be charged with DWAI or DWI, even after refusing the test, and even if the additional evidence against you is weak.
Did you refuse to give a sample? Should you refuse? Is it too late to matter? Contact the Brill Legal Group immediately, no matter how much time has passed. We will explain the law, your rights and the ramifications of a breath test refusal. We may be able to undo the damage — or prove that police made mistakes in handling your situation.
Suffolk (631) 479-2180 — Manhattan (212) 233-4141 — Nassau (516) 342-5020
Toll-free (888) 309-8876
Breathalyzer Refusal Defense
Peter Brill is a former Nassau County Assistant District Attorney, the county with some of the highest DWI numbers in the state, and a criminal defense lawyer with 10 years of experience in DWI defense and DMV hearings. Our legal team has helped many clients of Long Island and New York City defeat refusal charges and retain their driving privileges.
- By law, the arresting officer must make clear that your license will be revoked if you refuse the Intoxilyzer 5000 test. In fact, police are required to (a) read this from a script and (b) state it twice. If this protocol was not followed, it may be possible to have your driving privileges restored, or even to get the charges dismissed.
- Police must measure your BAC within two hours of your arrest. During that period, you must be allowed to contact a lawyer, but only if you request it. If more than two hours passed or if you were prevented from getting legal advice, the refusal charge may not stand. (But the Intoxilyzer results may still be admissible in your criminal case.) An attorney who knows the ins and outs of the current DWI laws can help you decide if you have a chance of challenging your results.
- Did the officer have probable cause to pull you over in the first place? If not, the drunk driving and Breathalyzer refusal charges may go away completely.
The DMV Hearing to Save Your License
License revocation for a Breathalyzer refusal is not immediate. There will be a refusal hearing within 10 days of arrest before a Department of Motor Vehicles judge to determine if you intelligently and persistently refused to submit to the test.
If the arresting officer does not show up, you can keep your license until your second hearing (usually two to three months later). If the hearing judge upholds your revocation, you cannot get a hardship license, restricted license, or conditional license ("work permit") until your criminal case is resolved. Once revoked, the license suspension or license revocation stands, even if you win your DWI/DWAI case! This is why you must defend yourself at the refusal hearing. If you fail to show up, or show up unprepared, you have essentially kissed your license goodbye.
Experienced and Vigorous Defense
We understand that losing your license is a big deal, especially in Nassau County and Suffolk County, which do not have the public transit options available in NYC. We provide a free initial consultation, with offices in Hauppauge, Hempstead and Manhattan. Your call is answered 24 hours a day, 7 days a week, 365 days a year.
