SHOULD YOU BLOW INTO A "BREATHALYZER" WHEN ARRESTED FOR DWI?
In New York State, individuals who are arrested for DWI will be asked by police to blow into a "Breathalyzer", or similar machine, at the police station after arrest. At that point, the individual has to decide whether or not to comply with this request. This is an important decision that should not be taken lightly.
An understanding of relevant New York law is necessary in order to form a cogent decision on this issue. DWI is a criminal offense prosecuted in criminal court by the District Attorney. Since it is a criminal offense, if you are convicted of DWI (by plea or trial), you will forever have a criminal record. There are two types of DWI charges in New York. VTL §1192(2) states that a person is guilty of DWI simply by operating a motor vehicle with a Blood Alcohol Count (BAC) greater than, or equal to, .08. VTL §1192(3) states that a person is guilty of DWI simply by operating a motor vehicle while intoxicated. These charges are equivalent offenses, and a conviction to one is the same as a conviction to the other. NY also provides a lesser offense called Driving While Ability Impaired by Alcohol ("DWAI"), which is contained in VTL §1192(1). Importantly, DWAI is not a crime. It is simply a traffic infraction. Unlike DWI, a conviction to DWAI does not give a person a criminal record. This makes DWAI a much better offense to plead guilty to (or be found guilty of). Nearly all strategic decision making in a DWI case, including whether or not to blow into a breath test machine, is guided by the desire to obtain a DWAI plea deal, which can then be accepted, or declined in favor of trial.
When a person provides a breath sample that registers at or above .08, such person will be charged with both VTL §1192(2) and §1192(3). When a person refuses to provide a breath sample, they will not be charged with VTL §1192(2), but will certainly be charged with VTL §1192(3), since such section is not based on a BAC reading. Therefore, if you refuse, you will still be charged in criminal court. And since these charges are equivalents, you will be charged with, functionally, the same level of offense. What this all means is that you will not be able to avoid a DWI prosecution simply by refusing.
However, there may be benefits to refusing. By refusing, your BAC will forever remain a mystery. It will be an unknown fact in your case. This is a good thing, if your actual BAC was very high. A high BAC (roughly .16 or higher, although what is deemed high varies throughout the state) makes it much harder for your attorney to obtain a reduced plea deal to DWAI, which, as noted above, is a traffic offense and not a crime. Further, if you wish to go to trial, you have a much greater chance of being convicted of DWI if you have a high reading. So, in short, if you are excessively drunk, and anticipate blowing a high reading, you should refuse the breath test.
However, in many situations, a defendant will want their true BAC known to the Court. In cases where the BAC is low, a defendant is actually in an advantageous position. There is no mystery as to what the BAC was, so therefore, there is no speculation that is was high. With a low BAC, it is much easier for the attorney to obtain a plea reduction to the traffic offense of DWAI. Therefore, if you know that your inebriation level is modest (or better) than you will be better off providing a breath sample, since you will be providing evidence that your level of intoxication was low. And of course, if you blow lower than a .08, than you may be able to avoid being charged with DWI in the first instance, and instead face only a DWAI charge.
If you refuse, a separate administrative action with DMV is commenced. Such action is difficult to defeat, and will almost certainly result in a mandatory one year revocation of your license, and the payment of surcharges to DMV. Such revocation period is twice that of the maximum period you face in criminal court on DWI offenses. Therefore, the mere act of refusing creates additional problems, even if no conviction results in criminal court. Further, the prosecutor is permitted at trial in criminal court to argue to the jury that you refused because you knew that you would blow a BAC sufficient for conviction under VTL §1192(2).
Piecing all of this together, the best scenario is to provide a low BAC. When you do that, you avoid the harsh administrative sanctions that come with refusing, and you significantly increase your chances of obtaining a reduced plea deal to DWAI. The second best scenario is to refuse. By doing this, you endure the administrative sanctions associated with refusing, but you avoid the harsh consequences in criminal court that come with a high BAC reading. The absolute worse thing you can do is submit a high BAC. Sure, you will avoid the administrative sanctions, but you greatly increase the chance that you will be stuck with a criminal conviction in criminal court, since the prosecutor will be very reluctant to offer a plea down to DWAI with a high reading. Since, for most people, a criminal conviction if the worst thing that can result from a DWI arrest, a high BAC reading needs to be avoided at all costs. In addition sentencing parameters are worse for DWI than they are for DWAI.
Therefore, if you are exceedingly intoxicated, you should refuse. But if your intoxication level is low, than you should comply and submit a breath sample. If you are somewhere in the middle, you will need to use your best judgment. Keep in mind, however, that no matter what happens, hiring a good criminal defense attorney can greatly mitigate consequences in criminal court.
You should also note that while at the police station you have the right to consult with an attorney over the phone when deciding whether or not to submit a breath sample. People v. Gursey, 22 NY2D 224 (1968). Therefore, please call my office at 845-638-1100, or any other competent criminal defense attorney, if you find yourself at a police station being asked to submit a breath sample subsequent to a DWI arrest. Keep in mind that the police are not required to delay matters indefinitely while you await a return call from counsel. They merely must permit a small period of time during which counsel may be contacted. Use this limited time to contact a New York criminal defense attorney.
In New York, police often use a small, handheld breath instrument at the scene of the arrest in order to determine, in part, if probable cause exists for arrest. This is not the same instrument as the one contained at the police station. The handheld instrument used at the scene is inadmissible in Court, and its results, or your refusal thereof, are largely inconsequential. Instead, it's the machine at the police station that matters. You are not permitted to refuse at the police station merely because you provided a sample on the handheld device in the field.
Finally, please note that the advice contained herein only applies to DWI arrests in New York State. Because the laws of each state are different, the above advice may not be accurate outside New York. If you are arrested for DWI in New York, please contact a New York criminal defense attorney immediately.
If you have any questions about the above, please call me at 845-638-1100.