The day you obtained your driver’s license, you had to fill out paperwork. During the excitement of that day, you signed a statement agreeing that if you were arrested for DWI, you would submit to a chemical test to determine your blood alcohol content (BAC). Most states, including New York, follow this procedure. Therefore, by merely operating a motor vehicle on the public roadways of New York State, all motorists are presumed to have given implied consent for BAC testing. If an officer asks you to take a blood, breath or urine test, you are legally obligated to submit or you may face harsh penalties.
Notwithstanding this presumption, police officers must read the motorist what are commonly called implied consent warnings (or refusal warnings). This allows the motorist to make an informed decision as to whether they will submit to or refuse a chemical test. If a motorist is asked to take such a test and refuses, the officer must then read the warnings. After being read these warnings, each motorist is asked again to submit a blood, breath or urine sample for testing. If the motorist refuses again, the refusal can be used against that motorist as evidence of a guilty conscience (i.e. that the motorist chose not to submit because he or she knew that the test result would provide evidence of guilt).
Depending on the particular circumstances of your case and criminal or DWI history, it may or may not be a good idea to submit a sample for testing. The decision is a critical one, and in almost all circumstances the motorist under arrest will not have sufficient knowledge or experience to make the best choice for his or her case.
The New York State DWI laws are somewhat unique insofar as a motorist has a qualified right to consult with an attorney before deciding whether to refuse or to submit a sample for chemical testing. The right is deemed qualified because, though the motorist has the right to call or consult with an attorney, the police do not have to wait for an attorney’s arrival or allow the motorist to seek legal advice if the act of contacting an attorney unreasonably obstructs the arrest and investigative process. However, speaking with an attorney is critical because the decision to submit or refuse to submit to a chemical test will result in consequences which could have a devastating effect on your life and DWI case.
Remember that at Anelli Xavier, once you retain our team, we are committed to you. Our experienced and knowledgeable New York State DWI attorneys expect late night calls as a part of their job. Call me, the DWI Guy, and my team of attorneys if you need to decide whether or not to submit to such a test, or if you need guidance regarding whether the proper procedures were followed before you decided to refuse. We will both educate and guide you through the decision making process, while advocating for the best results possible.