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Refusing a breathalyzer test in New York may result in immediate administrative penalties, including a license suspension, even before any DWI case is resolved. New York’s “implied consent” law requires drivers to submit to chemical testing, and refusal can be used against you in both the DMV hearing and the criminal case. A refusal does not prevent prosecution for drunk driving, and in many situations, it complicates the defense. Let’s explore the consequences and the steps that follow a refusal for anyone stopped on suspicion of impaired driving.
What New York’s Implied Consent Law Means for Drivers
By driving in New York, you automatically consent to Formal Chemical Testing (breath, blood, urine, or saliva) if you are lawfully arrested on suspicion of impaired driving. This is New York’s “implied consent” law. While you may also be asked to take a Preliminary Breath Test (PBT) at the roadside, refusing this PBT does not carry the same immediate license suspension and mandatory revocation penalties as refusing the formal test. However, refusing the formal chemical test—administered at the station after an arrest—is treated as a separate legal issue that carries its own severe administrative penalties, regardless of whether the underlying DWI charge is proven.
Immediate Consequences of Breathalyzer Refusal
When you refuse a chemical breath test, several consequences occur on the spot:
- Your driving privileges are immediately suspended.
- You will be issued a notice for a DMV refusal hearing.
- The officer will prepare a sworn statement documenting the refusal.
This immediate suspension applies even if you have never been arrested before and even if the DWI charge is later dismissed. The suspension remains in place unless the DMV hearing results in a finding that the refusal was improper.
The DMV Refusal Hearing Explained
The DMV hearing is separate from the criminal case and focuses only on whether you refused the test. At this hearing, the state must prove:
- The officer had reasonable grounds to stop or arrest you.
- You were properly warned about the consequences of refusal.
- You refused the test after being asked.
If the DMV decides the refusal was valid, your license will be revoked for at least one year. This revocation is mandatory, and the court cannot reduce or eliminate it as part of the criminal case.
Penalties for a First Refusal in New York
For most first-time offenders, the refusal penalties include:
- Mandatory license revocation for at least one year
- Civil penalty of $500
- Driver responsibility assessment fees
These penalties are separate from any fines or sanctions related to a DUI charge. Even if the DUI charge is dismissed or reduced, the refusal penalty still applies if the DMV upholds it.
Penalties for a Second or Subsequent Refusal
Repeat refusals carry significantly harsher consequences:
- License revocation for at least 18 months
- Civil penalty of $750
- Potential permanent revocation for certain prior offenses
Drivers with prior DWI convictions or refusals face stricter review at the DMV hearing and are less likely to qualify for limited driving privileges.
Can You Still Be Charged With DWI If You Refuse?
Yes. Refusing a breathalyzer does not prevent a DWI prosecution. Prosecutors can use:
- Officer observations
- Field sobriety tests
- Driving behavior
- Body-worn camera footage
- Statements made during the stop
In many situations, refusal makes the DWI case more complex, as prosecutors may argue that it indicates consciousness of guilt.
Is It Ever Beneficial to Refuse a Breathalyzer?
The answer depends on the situation. Some drivers refuse because they believe it helps avoid evidence against them. However:
- A refusal often results in stronger penalties than a low BAC would have.
- Refusal may limit access to hardship or restricted licenses.
- Prosecutors may treat refusal cases more seriously.
An attorney can evaluate whether the refusal helps or hurts the defense after reviewing the full circumstances.
What To Do After a Breathalyzer Refusal
Drivers facing a refusal should take several steps immediately:
- Attend or prepare for the DMV refusal hearing as soon as possible.
- Avoid missing that hearing, since a default ruling results in automatic revocation.
- Document everything you remember about the stop.
- Hire a DWI attorney early so both the DMV and criminal cases can be addressed together.
Early intervention can influence the hearing, the criminal case, and the overall outcome.
Talk to a Long Island DUI Defense Attorney About a Breathalyzer Refusal
Refusing a breathalyzer creates two separate legal battles, and the penalties can be severe, even for a first offense. Michael A. Arbeit, P.C., represents drivers in Nassau, Suffolk, and New York courts and helps them defend both the refusal hearing and the criminal charge. If you refused a breath test, we can guide you through your options and work to protect your license and your record. Contact us today to discuss your case and take the next step toward resolving your DWI or refusal charge.