Getting pulled over for suspected drunk driving can be a terrifying experience. One of the most critical decisions you may face in that moment is whether to take the breathalyzer test when requested by law enforcement.
In New York, the consequences of refusing a breath test are serious—just as serious, in fact, as failing one. But that doesn’t mean the decision is always clear-cut. Here are the pros and cons of refusing a breath test in New York that every driver should understand before they ever find themselves in that situation.
✅ The Pros of Refusing a Breath Test
1. No Direct Evidence of BAC (Blood Alcohol Content)
Refusing the test means prosecutors won’t have a chemical reading of your BAC, which is often a cornerstone of a DWI case. Without this evidence, it can be more difficult for the State to prove your level of intoxication beyond a reasonable doubt.
2. Potential for a Stronger Defense
In cases where there are no field sobriety tests, dashcam footage, or witness testimony of impairment, refusal can limit the prosecution’s evidence. This opens the door for a more aggressive defense strategy focused on a lack of probable cause or insufficient proof of intoxication.
❌ The Cons of Refusing a Breath Test
1. Immediate License Suspension – No Exceptions
New York is an “implied consent” state. By operating a vehicle here, you automatically consent to chemical testing if lawfully arrested for DWI. Refusing the test results in a mandatory 1-year license suspension, even if you’re never convicted of the DWI itself, subject to a separate DMV hearing to determine if the refusal was made knowingly and voluntarily.
2. Civil Penalties
In addition to losing your license, a refusal carries a civil penalty of $500 (or $550 for commercial drivers), which must be paid to the DMV to reinstate your driving privileges.
3. Evidence of Refusal Can Be Used Against You
At trial, prosecutors can—and often do—argue that your refusal shows “consciousness of guilt.” In other words, they may claim that you refused the test because you knew you were intoxicated.
4. Separate DMV Hearing
Refusing a breath test triggers a separate DMV refusal hearing. This is independent of the criminal case and can result in license suspension even if you’re acquitted of the DWI charge in court.
So, What Should You Do?
There’s no one-size-fits-all answer. In general:
- If you haven’t been drinking, taking the test may be your best option to clear yourself.
- If you have been drinking, refusal might limit the evidence against you—but the license and financial penalties can be severe.
- If you’re a repeat offender, refusal may seem attractive in the moment, but prosecutors can still charge you with a DWI based on other observations—and refusal penalties increase for second or third offenses.
Final Thoughts
Whether you submit to a breath test or not, being charged with DWI in New York is a serious legal matter. Your rights, your license, and even your freedom may be on the line.
At The Law Office of Siara Ossa, we focus exclusively on defending people charged with DWI and related offenses throughout Long Island and New York City. As a previous Public Defender, I have handled hundreds of DWI cases from arraignment to resolution and even dismissal. If you or someone you know has been arrested for DWI in Queens, Nassau, or Suffolk County—with or without a breath test—contact us immediately. We’re here to fight for your rights and protect your future.
📞 Call us at 347-733-5612
📧 Email us at siara@ossalawny.com
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