Under New York law, if a person is pulled over for suspected driving while under the influence of alcohol, the driver must submit to a chemical test (breath, blood, urine, or saliva), as a matter of “implied consent.” This does not mean that drivers absolutely have to submit to a chemical test. The purpose of the implied consent rule is to encourage drivers to consent and obviate the need to get court orders authorizing blood tests. Drivers can certainly refuse to take a breathalyzer or other chemical test. However, with refusal comes the serious consequence of a 6 month license suspension and a $300 fine. If the driver refuses again within 5 years of a previous DWI related offense, the consequences are a mandatory 1 year license suspension and a $750 fine. These penalties are in addition to any penalties related to a DWI or similar offense conviction.
In People v. Odum, defendant Odum was arrested for DWI and taken to the police station. He was not asked to take a breathalyzer until over two hours after he arrived at the police station. He refused. The police officer then gave Odum the statutory warning related to the consequences of refusing the breathalyzer, including that Odum’s refusal to consent to the breathalyzer would be used against him as evidence in his trial. After hearing the refusal warnings, Odum changed his mind and consented to the breath test which confirmed that his blood alcohol level was over the legal limit. Odum later petitioned the court to suppress the breath test and his initial refusal to take it.
The rules related to the breath test requirement are detailed and clear. Because of New York’s implied consent provisions, a refusal to take the breath test or any other chemical test in conjunction with being stopped on suspension of driving while drunk is a violation of the law with consequences. A driver can be convicted of refusing to take a chemical test and be acquitted of DWI charges.