Getting pulled over in New York for suspected DUI or DWI is stressful. In that moment, you have to decide if you will take a breathalyzer. Your choice matters. It can affect your license, your record, and your driving privileges. Under New York’s Prompt Suspension Law, a refusal or a high test result can trigger a quick license suspension at arraignment. Your case may also involve NY VTL § 1192.2, which covers per se DWI based on blood alcohol content.
Breathalyzer and other chemical tests often become the strongest proof in a DWI case. Still, the test has to be given the right way and for the right reasons. If the officer skipped required steps or lacked probable cause to stop or arrest you, it can weaken the case against you.
Before you decide on your next step, especially if it involves refusing a DWI stop test, it’s crucial to consult with a trusted attorney. Our New York DWI attorneys at The Kugel Law Firm can walk you through your options. Our team can answer your questions in plain English, review how the stop and testing were handled, identify strategies for building a robust defense, and help achieve a favorable outcome. Contact us today at (212) 372-7218 to schedule a consultation.
Can You Refuse a Breathalyzer Test for a DWI in New York?
Portable breath test results from the roadside usually do not come into evidence at trial to prove you were intoxicated. Courts mostly treat them as a tool to help an officer decide if there is probable cause to arrest you. On rare occasions, a judge may allow the actual number, but only if the prosecutor proves the device and method are scientifically reliable.
New York uses implied consent. When you drive here, you are agreeing to chemical testing in a DWI investigation. If a quick roadside breath screen suggests you drank alcohol, the officer can ask you to take an evidentiary test. That could be a breath, blood, or urine test at a station or medical facility. For that test to be used in court under New York’s implied consent law, it has to be given within two hours of your arrest. If you clearly and voluntarily agree to a test after those two hours, the results can still be used.
You can refuse a breath or chemical test. It is your call. But refusal brings separate fines, penalties, and other consequences on top of anything tied to the DWI charge.
New York DWI Attorney
Rachel Kugel
At The Kugel Law Firm, New York DWI attorney Rachel Kugel concentrates her practice on defending good people accused of driving under the influence of alcohol or drugs. From the initial stop to breath, blood, and field testing, Rachel is known for challenging every assumption and building smart, science-driven defenses tailored to each client.
Rachel is an active member of the National College of DWI Defense and the DUI Defense Lawyers Association, and she has been invited to speak about DWI defense and the business of law at AVVO “Lawyernomics,” the NJ Bar Association, and Garden State CLE. The Kugel Law Firm is Avvo-rated and has been included on the Rising Star SuperLawyer list for three consecutive years, giving you peace of mind that you’re choosing a knowledgeable, experienced advocate.
What Are the Penalties for Refusing a Chemical Test in NY?
The penalties you get in New York for refusing a breath test will depend on your record within the past five years:
- Civil penalty: $500 for a first refusal; $750 if, within the past five years, you’ve had any conviction under VTL §1192 (any subdivision) or §1192-a, or a prior refusal.
- License action: The DMV may revoke your driver’s license for at least one year, or at least 18 months if you have a prior §1192/§1192-a conviction or a prior refusal within five years.
- Driver Responsibility Assessment: an additional $750 total (paid as $250/year for 3 years).
New York also adds greater penalties and surcharges if there are factors such as multiple alcohol- or drug-related misdemeanors, felonies, or aggravated DWI violations on your driving record. You may face more severe consequences if you have recklessly caused an accident or injured others. As soon as you get your phone call, you should contact a knowledgeable DWI attorney who can help with your case.
| Penalty Type | First Refusal | With Prior Refusal or §1192/§1192-a Conviction (within 5 years) |
|---|---|---|
| Civil Penalty | $500 | $750 |
| License Action | Revocation for at least 1 year | Revocation for at least 18 months |
| Driver Responsibility Assessment | $750 total ($250/year for 3 years) | $750 total ($250/year for 3 years) |
Can You Refuse a Breathalyzer Test During a DUI or DWI Arrest in New York?
Refusing a post-arrest breathalyzer test triggers an immediate suspension at arraignment pending a DMV refusal hearing. If the refusal is sustained at the DMV hearing, DMV must revoke your license for at least one year (or 18 months with certain priors) and impose a civil penalty of $500 (or $750 with a qualifying prior within five years).
Evidence of a refusal to a breath or blood test can only be used in a criminal trial if the request was made within two hours of your arrest or a positive roadside breath test. This is also contingent on you receiving a clear and unequivocal warning about the consequences of refusal. If these conditions aren’t met, the evidence is inadmissible in court but can still be used in a separate DMV hearing.
Do You Automatically Lose Your License if You Refuse a Breathalyzer in New York?
If you refuse a breath test in New York, you do not lose your license for a year at the roadside. Instead, your license gets suspended at your first court date, called an arraignment, while you wait for a DMV refusal hearing.
If the DMV upholds the refusal, your license will be revoked for at least 1 year. It can be 18 months if you have certain prior offenses. You will also face a civil penalty of $500 or $750. This is an administrative process that runs separately from your criminal DWI case.
Refusing a breathalyzer test in New York can have serious legal consequences. If you were clearly warned about the penalties, your refusal can be used as evidence against you in court. It is important to consult with a New York DWI lawyer who understands these specific rules. The right guidance can help you make smart choices and possibly reduce the fallout from a breathalyzer refusal.
New York’s DMV Refusal Hearing Process
When you refuse, your license is suspended at arraignment and remains suspended until the DMV holds the refusal hearing. If DMV does not provide a hearing within 15 days after arraignment, your license must be reinstated pending the hearing. This DMV hearing is separate from your criminal DWI case.
At the hearing, an administrative law judge looks at four issues: did the officer have reasonable grounds for DWI, was there a lawful arrest, were you clearly warned that refusing would bring immediate suspension and later revocation, and did you actually refuse. If the judge finds any one of these in the negative, your suspension ends. If the judge finds all four in the affirmative, the refusal is sustained, and DMV immediately revokes your license.
Expect documents and witnesses. The officer is directed to bring the Refusal Report to the hearing, and you can present your own evidence and witnesses. If the officer does not appear, hearings are commonly adjourned. When a refusal hearing is continued, the pre-hearing suspension generally remains in effect unless the ALJ affirmatively finds you are not a substantial traffic-safety hazard. Testimony is recorded. In a criminal case, refusal evidence is admissible only when the request and warnings occurred within the two-hour deemed-consent period and the warnings were clear and unequivocal.
You do not have to go through this alone. A DWI defense lawyer can challenge probable cause, attack warnings, cross-examine the officer, and push for a dismissal so you keep your license and protect your driving privileges.
Get Quality Legal Assistance at The Kugel Law Firm Today
At The Kugel Law Firm, we’re not here to judge you. We’re here to defend you. Our New York DWI attorneys can work diligently to evaluate every aspect of your case, from the initial traffic stop to the specific charges against you, and develop a strategic defense tailored to your situation. Contact us today at (212) 372-7218 to discuss your case and take the first step toward achieving the most favorable outcome.
