Capital Region Legal News

Monday, February 22, 2016

Refusals To Take Chemical Tests for DUI Reduce Conviction Numbers in Parts of Western NYS

How important are chemical tests for DWI convictions in New York State?

When a driver is stopped by the police for any reason and the officers suspect that the driver is intoxicated, they will ask that person to take a breath or blood test to determine blood alcohol content (BAC). Since law enforcement officials cannot force the suspect to take such a test, it is debatable what the driver who has been pulled over should do. 

Criminal defense attorneys often recommend that suspects who are impaired not take the test since it will provide a quantified piece of evidence. In fact, according to the NYS Department of Motor Vehicles, a third of all suspects in Erie and Niagara Counties refuse the chemical test. This is a higher percentage of refusals than in other counties in Western New York State, as well as in the nation in general. Fewer criminal convictions for DWI in these counties are, presumably, the result of this pattern of behavior. Even so, there are some cases where taking the chemical test could work in the defendant's favor since the individual appears more intoxicated than he or she really is, and there are negative consequences to refusing to oblige.

Refusal to take the test is no "Get out of jail free" card. Lacking precise chemical evidence, the prosecutor will use what is called "common law indications of intoxication," including: erratic driving patterns, staggering gait, inability to balance, and slurred speech. Being observational, rather than numerical, however, such signs are more difficult to use as proof in a court of law. This is shown by the fact that drivers who refused to take the test had a slightly higher rate of lowered charges than did those who agreed to take the test.

Private citizens, particularly those who have been negatively impacted by a drunk driving crash, perhaps by experiencing a severe injury or losing a loved one, obviously take a dim view those who drive impaired.  Many public officials, along with organizations like Mothers Against Drunk Driving, have spent years trying to toughen laws against DUI offenders. They refer to the section of the Vehicle and Traffic Law Section 1194 that explicitly states:
"Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcohol and/or drug content of the blood..." providing that test is administered by law enforcement.

Nonetheless, drivers are routinely permitted to refuse chemical tests to determine their level of intoxication. There are, however, serious consequences of refusal, including:

• One year loss of license, except possibly to meet medical needs or for school attendance
• Denial of plea reduction in some NYS counties, like Albany and Nassau
• Court- enforced to submission to a blood test when an accident has resulted in serious injury or fatality

Law enforcement and prosecuting attorneys are looking for ways to increase the number of intoxicated drivers who take one of the chemical tests, both to obtain more convictions and to get dangerous drivers off the road. Former District Attorney Clark supports increasing the license loss period to two years, without the possibility of appeal for the entire 24 months. This would certainly make it more difficult and less convenient for drivers to refuse being tested. 

If you have been arrested for DUI in New York State, you know you are in serious trouble. Please don't hesitate to consult with one of our knowledgeable attorneys at Ianniello Anderson at 518.350.7755 where we serve clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy and the entire Northeastern NY area with skill and dedication.


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