Breathalyzer Considerations During a DWI Traffic Stop

Cop giving a breathalyzer test

At a traffic stop, should I take the breathalyzer test or refuse it?

We have been criminal defense attorneys for over 25 years and have been dealing with breathalyzer[1] issues throughout our careers. The nature of our business is such that we must be available to our clients after hours in the event of a legal emergency. Oftentimes that legal emergency involves a client getting pulled over and arrested for driving while intoxicated (DWI)[2]. The circumstances of the arrest typically arise from a traffic stop, or less commonly, a sobriety check point where a breathalyzer test is involved.

In New York State, after being arrested for DWI, the motorist is asked if he or she would like to take a breathalyzer test to determine the amount of alcohol, if any, in his or her blood. Case law allows the motorist to consult with an attorney before taking that test. That is where we come in. A very common question, often in the middle of the night, comes from a motorist in custody asking the question, “should I take the Breathalyzer?” Unfortunately, as set forth below, there is no right or wrong answer to that question, just a different set of very serious consequences.

Common Scenarios When Getting Pulled Over

Of course, if you have not been drinking and are requested to take the breath test, there is no obvious downside to accepting the offer to take the test. The legal implications typically come into play if you have been driving under the influence.

Scenario #1, you take the breathalyzer test.

In this scenario, if you take the test, and your blood alcohol content is above the legal limit, you will be arrested, held in custody until the next court session, and have your license suspended. The reading from the blood test can and will be used against you by the prosecution. You also face the possibility of having your car seized.

Scenario #2, you refuse to take the breathalyzer test.

Under these circumstances, by refusing to take the test, you are eliminating the possibility of a breath test “reading” being used against you during your prosecution. However, the evidence of the refusal could be used against you at trial, but just as importantly your license will be suspended for one year based on the refusal alone. This suspension will stand even if you are acquitted of the DWI charges. Further, many District Attorney’s refuse to plea bargain if the motorist refused to take a breath test. Lastly, you will face the risk of vehicle forfeiture.

No Right Answer with a DWI

Here at Foley Griffin, we’re always available to consult our clients and we will analyze each and every unique situation and provide our best recommendation based on what we are presented with. However, as you can see from this brief overview of the implications of DWI, either scenario brings with it significant pitfalls. The value of making alternative arrangements when drinking cannot be overstated. There is no substitute for being careful and prudent prior to consuming alcohol and MAKING A PLAN TO GET HOME!

[1] Although it is commonly referred to as the “Breathalyzer,” the actual devise is called an “Intoxilyzer”
[2] “DUI” is not the proper term for the charge in New York. The proper term is “DWI”
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