Law Office of Emanuel Mouganis

One of the most common questions of criminal defense attorneys is whether or not a person is better off agreeing to take a breath test or refusing to take a breath test when pulled over by the police on suspicion of DWI (driving while intoxicated) in New York.

Negative Consequences of a Breathalyzer refusal:

Refusing to take a breath test has one important implication in New York that is completely independent of your driving while intoxicated criminal case: you will lose your license for a year without the ability to obtain a conditional license. Even if you are eventually found not guilty of your DWI case, your license will still be suspended for your refusal. Additionally, the District Attorney’s Offices usually will not make a plea offer to someone who refuses the test. On the other hand, if someone is close to the legal limit, the State will usually make a plea offer to a non-criminal offense of DWAI. Therefore, a refusal will limit your ability to get such an offer.

Benefits of a Breathalyzer Refusal:

Although a Breathalyzer refusal has some serious civil penalties, agreeing to take the test, from a purely criminal defense oriented point of view, could certainly give the Government some potentially damaging evidence against you. Be advised however, that you are being observed and sometimes, videotaped by the police while you are in their presence. If you appear sober, there is less evidence against you and you have a stronger defense. Therefore, if you have a lack of scientific evidence coupled with a “good” video or observation, you should have a viable chance of acquittal. On the other hand, if you were observed or video-taped swerving, stumbling, vomiting, or slurring your speech, then the lack of breath test result will be less important.


If you are close to the legal limit or if obtaining a conditional license is imperative to your situation, and there are not any overriding considerations like a seriously injured person or being charged with a felony DWI, then my position would be TAKE THE TEST.
If there are overriding considerations, like being involved in an accident with a seriously injured person or you are being charged with felony DWI, or if you are well over the limit, then my position would be DO NOT TAKE THE TEST.

The Mouganis Law Firm is a New York criminal defense firm representing clients in Driving While Intoxicated and drunk driving related crimes in the Greater Rochester Area of New York. Should you have any questions and require the services of an experienced criminal defense attorney please contact us at (585) 301-2496. Rochester, New York Criminal Defense Attorney.

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