Technically, no. If you are arrested and charged with a DWI in New York, you may choose not to take a breath or blood BAC (blood alcohol content) test. However, a refusal to do so will have serious consequences due to New York’s implied consent laws.

What Is Implied Consent?

New York’s implied consent law states that any person who operates a motor vehicle in the state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood.  Thus, you give consent to a chemical test simply by driving in the state.

What Are the Penalties for Refusing to Take a Breath or Blood Test after Being Arrested for DWI?

If you are lawfully arrested for a DWI and refuse to submit to a BAC test, you will be subjected to mandatory civil fines and license suspensions. The penalties for refusing to take a BAC test are in addition to the standard penalties for DWI.  Even if you are acquitted of DWI charges, you will still face these penalties:

  • Chemical Test Refusal: Mandatory 6 month license suspension and $300 civil fine
  • Chemical Test Refusal Within 5 Years of a Previous DWI Related Offense:  Mandatory one year license suspension and $750 civil fine

It is important to realize that you can be convicted of both a DWI and a Chemical Test Refusal.

Do I Need a Lawyer?

DWI arrests are serious and can have severe consequences. If you refused a chemical BAC test when arrested, you need to contact a criminal defense attorney who specializes in DWI defense immediately. Your attorney will be able to help you fight any charges and may be able to help you reduce your penalties.

An experienced DUI/DWI lawyer in New York in can provide you more information if there is a legal basis for your case. For more local legal information, please see these pages: