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The Myths About DWI Tests in New York

Three defense attorneys share some tips

Portable breath-testing devices have been around in some form for more than 90 years—dating all the way back to biochemist Rolla Neil Harger’s “Drunkometer” in 1931—and most people have opinions on them.

With the modern breathalyzer, for example, conventional wisdom suggests that you should never agree to submit to the test. But DUI/DWI attorneys say it’s more complicated than that. The idea that you should never take it is “a myth, like the Loch Ness Monster,” says Steven B. Epstein, of Barket Epstein Kearon Aldea & LoTurco. “Unfortunately, it’s a myth that can hurt people.”

Here’s why: In New York State, there are “implied consent” laws that require a driver to submit to a chemical test—a blood, breath, urine or saliva test—to determine the amount of alcohol or drugs in the driver’s body if the officer has probable cause to believe the driver is intoxicated. Officers use field sobriety tests to determine probably cause, and one of those is the preliminary breath test (PBT). Failure on the preliminary tests will lead to a chemical test, Epstein says—as does refusal to take them.

Unless you are in a serious accident in which someone is injured or killed, you have the right to refuse the chemical test, which is often the breathalyzer. However, doing so can cause you to lose your license for a year—or longer if you already have a DWI conviction on your record—regardless of whether you are eventually found guilty of DWI. There may also be fines and court costs.

Attorneys say that doesn’t mean you should always take the chemical test, either. Other factors—such as whether an accident occurred, if you have a prior record, and the timing and amount of alcohol and food you’ve consumed—all must be considered. Even if you fail a test, an attorney can make credible arguments on your behalf that the results are not sufficient to prove a DWI.

“No one answer fits all” situations, says Karl C. Seman, of Grunwald & Seman. He recommends asking yourself the following five questions if you are asked to take a chemical.

  1. Was there an accident?
  2. Were you driving dangerously?
  3. Do you have prior DWIs?
  4. What time was your last drink, and how much did you drink?
  5. At what time and how much did you eat?

If you are sure you are innocent and sober, take the test, Epstein says. “They will release you, and you will save a lot of time and expense.”

However, “if you know you will fail the test at a level well above the legal limit of .08, it is generally not a good idea to submit,” he says. “It is very strong evidence against you, and in New York, if you are above .18, the punishment goes up.”

And if you want to reach out to a legal expert in the moment? “You have the right to speak to an attorney before you blow, but it is a very limited right,” says Daniel A. McGuinness, an attorney in New York City. “The police aren’t going to reach out to legal aid for you. You have to have an attorney you can dial up 24/7.”

Experts in DWI defense have 24-hour hotlines. “If the phone rings at 3 a.m., I pick up,” says Seman. “We are not trying to beat the machine and game the system. All you want is a fair shake.”

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