If a police officer asks a driver in New York to take a breathalyzer test, any refusal to test may be penalized with a license suspension and a fine, even if a Westchester County DWI attorney wins an acquittal for you on a related DWI (driving while intoxicated) charge.

Legally speaking, if you are stopped in traffic by a police officer and asked to take the test, you have already – simply by driving in New York – given your consent to a breathalyzer test (or a blood or urine test) to determine your blood alcohol content (BAC) level.

IS IT A CRIME TO DECLINE A BREATHALYZER EXAM?

If you decline to submit to a breathalyzer exam, you can be fined and your driver’s license can be suspended for a year. If you are a commercial driver, the fine is increased, and the license suspension is for eighteen months.

Refusal to test is handled separately from any criminal DWI proceeding. Still, you’ll need to have the right DWI attorney representing you at a refusal hearing. You won’t be required to testify, but your attorney can speak on your behalf.

IS THERE ANY DEFENSE AGAINST A REFUSAL TO TEST CHARGE?

If you refused to submit to a breathalyzer test, you will not be able to prove otherwise, but there are in fact several valid reasons for refusing to test – reasons that your attorney might offer in your defense at a refusal hearing:

1. Some medical conditions may keep some people from providing enough air to measure their BAC levels, but this defense works only if a medical authority confirms it as an expert witness. (Specific medical conditions are discussed below, so keep reading.)

2. Police officers must use clear and direct language when explaining what will happen if a driver refuses to test. Additionally, a police officer must provide clear instructions on using the breathalyzer device.

3. Drivers may consult with an attorney before submitting to a BAC test, and the police must, if necessary, provide access to a telephone. Any failure to provide access to a lawyer may trigger a dismissal of the refusal charge.

WHAT IS REQUIRED TO CONVICT A MOTORIST OF DWI?

In most New York DWI cases, if you are stopped while driving and a breathalyzer test indicates that your BAC level is at or above 0.8 percent, that test result alone is enough to convict you of DWI.

However, breathalyzer devices are not always reliable. These devices often provide false readings, and for a number of reasons.

That’s why, if you are charged with driving while intoxicated in New York on the basis of a breathalyzer test result, you must be represented by the right New York DWI lawyer.

WHAT CAN MAKE A BREATHALYZER TEST RESULT INACCURATE?

Breathalyzers can return false readings from a number of medicines, foods, and beverages. For example, yeast creates residual traces of alcohol in bread, and those traces may still be detectable long after that bread has been baked.

Many commercially available mouthwashes and cough syrups have trace amounts of alcohol. So do pecans, macadamia nuts, ripe fruits, certain protein bars and energy drinks, and a number of other foods and beverages that may cause a breathalyzer test result to be wrong.

Colognes, breath fresheners, and perfumes can make breathalyzer test results inaccurate, and as mentioned previously, a number of medical conditions can also cause a false measurement.

Anyone with diabetes, hypoglycemia, gastroesophageal reflux disease, or the unusual condition known as “auto-brewery syndrome” could be arrested in New York and charged with DWI on the basis of an inaccurate breathalyzer test result.

ARE THERE OTHER REASONS FOR INACCURATE BREATHALYZER RESULTS?

Breathalyzers are unsophisticated technology. Even with proper maintenance, some of these devices are vulnerable to radio frequency interference (RFI) whenever police officers use walkie-talkies and hand-held radios. RFI can also be the reason for inaccurate breathalyzer results.

And the devices themselves are not the only reason why breathalyzer exams so often return the wrong results. An exam that isn’t conducted properly may also deliver the wrong result.

Police officers undergo special training to conduct breathalyzer tests legally and to adhere to standard procedures. If the right procedures are not followed precisely, the exam results will probably be wrong.

And there’s yet another problem that affects breathalyzers that has only recently been identified. When airbags deploy, chemicals from the airbags can enter a driver’s lungs, skewing the results of any subsequent breathalyzer exam.

HOW CAN BREATHALYZER RESULTS BE CHALLENGED?

A good Westchester County DWI attorney may contest the results of a breathalyzer exam by seeking the answers to these questions:

1. Did the officer who conducted the test have the proper training and credentials?
2. Was the test administered properly?
3. Was the breathalyzer device calibrated and maintained properly?

The right attorney will also determine if police officers had probable cause to pull you over in traffic for suspicion of DWI. When officers violate any of a suspect’s legal rights during an interrogation, a search, or an arrest, good lawyers often have DWI charges dropped or dismissed.

The 0.08 percent DWI limit applies to adult drivers 21 and above, but New York drivers below age 21 must adhere to a 0.02 percent limit, and drivers with a CDL (commercial driver’s license) must also adhere to a 0.02 percent limit.

WHAT ARE THE PENALTIES FOR A NEW YORK DWI CONVICTION?

If you drive in New York and your (BAC) level measures above the legal limit, you may be charged with “standard” DWI. A conviction on a first-offense DWI charge can be penalized with a fine of up to $1,000, and/or up to a year in jail, and a six-month driver’s license revocation.

A second standard DWI conviction within ten years of the first may be penalized with a fine of up to $5,000, up to four years in custody, and a license revocation for a minimum of one year.

But if you drive in New York with a BAC level at or above 0.18 percent, you may face an “aggravated” DWI charge. A conviction for a first-offense aggravated DWI can be penalized with a fine of up to $2,500, and/or up to a year in jail, and a one-year license revocation.

This kind of legal trouble can be entirely avoided if you simply don’t drink and drive. Nevertheless, DWI charges in the State of New York are often successfully challenged, and every DWI defendant has the right to a good DWI lawyer’s help.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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