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*excluding traffic tickets*

Helping people when they need it most.

Do I have to submit to a breath test in New York?

If an officer stops a driver in New York for suspicion of driving under the influence of drugs or alcohol, he or she will typically administer a breath test. This test determines the driver’s blood alcohol concentration, with a legal limit of 0.08%. The legal BAC for a driver who is younger than 21 is 0.02%.

Even if you have not been drinking, it may be in your best interest to take a sobriety test if an officer stops you for DUI in New York. Otherwise, you may receive penalties for refusing a breath test.

The Implied Consent Law

New York’s Implied Consent Law states that by the act of driving a vehicle, individuals imply their consent to a breath test or sobriety test if necessary. The screening can be a breath, blood, saliva or urine test.

Law enforcement decides which test you will take. In most cases, officers use a portable handheld breath testing device. However, you have the right to arrange an independent screening by a doctor of your choice after taking the police-ordered test.

The police cannot physically force you to take a chemical screening test. However, if your DUI charge involves an accident that kills or seriously injures another person, they can seek a court order that allows forcible testing.

Consequences of test refusal

Even though refusing the test can make it difficult for the state to prosecute your DUI case, the refusal carries its own penalties as follows:

  • One-year license suspension and fine of $500 for a first refusal
  • 18-month license suspension and fine of $750 for a second or third refusal within five years of the first refusal
  • Permanent license revocation for two refusals, two DUI convictions or one refusal and one DUI within the past four years

The results of chemical screenings are admissible in court. However, your attorney may be able to determine that the officer conducted the test improperly or that the results are otherwise invalid.