If you’re pulled over for suspected drinking and driving, you’ll be asked to perform some initial roadside tests to measure your blood alcohol content (BAC).
These roadside tests will usually include a field sobriety test (FST) and a preliminary alcohol screening (PAS). The FST might include a one-leg stand, horizontal gaze nystagmus (HGN), and walk and turn. The PAS will generally be conducted with a portable breathalyzer device.
These tests are voluntary and performing these tests generally hurts your case rather than helps it – regardless of whether you’ve been drinking. Portable breathalyzers are unreliable and often give incorrect readings. And for example, even if you haven’t been drinking, your nerves and balance issues could mean you “fail” the FST tests.
The data gathered from these roadside tests is not evidence admissible in court.
If you refuse the roadside tests, this will usually mean that your license will be temporarily suspended and you will be taken to the police station. This might sound intimidating, but keep in mind that it could be the much better option. And it’s important to note that taking the roadside tests (even if you haven’t been drinking) doesn’t necessarily mean you’ll avoid this trip to the police station.
At the police station, you’ll be asked to perform a second breathalyzer test, and possibly also a blood sample.
Refusing this second test at the police station has much more serious repercussions. But also, because the results of this second test will be admissible evidence in court, the risk of taking the test is much greater.
So, should you accept or refuse the breathalyzer test at the police station? There’s no simple answer, but we’ll look at the pros and cons of each choice. Keep in mind that when discussing the pros and cons of taking the test, we’re only considering the second test at the police station, not the initial roadside test.
If You DO Take the Test
- If you DO take the test at the police station, and the result is a relatively low reading, you have a chance at having your charges reduced to DWAI. A DWAI is a less serious charge than a DUI and carries lighter penalties.
- However, if your reading is higher than a certain level it’s quite unlikely that you will be able to get your sentencing reduced, even if it’s your first-time offense.
- If you do take the test, the test results can be used as evidence for or against you. Having a test reading as evidence can be positive or negative. Once there’s a concrete BAC number to use as evidence in court, it can either work in your favor as “Yes, I was drinking but not that much” or against you as proof that you broke the law. Depending on your situation, your attorney can advise you on the better option.
If You DON’T Take the Test
- If you refuse the test, you will almost certainly be unable to get reduced sentencing. Without the chance of reduced sentencing, you have a higher chance of being convicted of a DUI, which means being convicted of a crime. If you’re convicted as a first-time offender, you’ll get a license revocation of 6 months, fines of up to $1,400, and you’ll be required to attend time-consuming MADD and DDP programs.
- If you don’t take the test, you run the risk of going to trial over the case, which will be more expensive. But sometimes, going to trial is the preferable option if you have a good chance of winning.
- Without the actual reading, there will not be the evidence admissible in court to be used against you. Without the actual results as evidence, you could argue that you were intoxicated but not impaired.
Tips To Remember If You’re Pulled Over
- You don’t have to answer questions beyond identifying yourself. You can politely but firmly refuse to answer additional questions without your attorney
- You do not have to perform any roadside tests such as walking in a straight line or breathing into a Breathalyzer. Your participation is not required by law, and will generally only hurt your case.
- If you are arrested and taken to the police station, remain silent and decline any chemical test until you are first allowed to speak with an attorney.
- Call an attorney ASAP. An experienced New York DUI/DWI attorney can advise you on which chemical test to take, if any. Your attorney can help you understand your rights and begin to prepare your defense.
There’s no easy answer as to whether you should accept the test or not in Westchester County, NY. A DUI/DWI attorney can advise you specifically given your unique situation. Contact Darren DeUrso at 914.772.8614 or online.
Darren DeUrso, Attorney at Law
188 East Post Road, Suite 300
White Plains, NY 10601