Serving The Greater Rochester Area

Blow or No? Should You Take a DWI Breath Test?

Number one question all criminal defense attorneys are casually asked about the law: If I get pulled over for DWI, should I blow?

My opinion is…probably. Now, why is probably the correct answer? Because there are two things going on when a person is arrested for DWI. There will be a criminal prosecution, and there will be action taken by the New York State Department of Motor Vehicles.

A breath test provides evidence in the criminal case. Most people who are arrested for DWI are actually over the legal limit, so the evidence would harm them in the criminal case. So why should you consider taking the test? Because most people in New York rely on driving a car on a regular basis.

If you are arrested for DWI, and the proper protocol is followed, your license will most likely be suspended at arraignment. If you have taken a breath test, your attorney can apply for a hardship license, and you will likely be eligible for a conditional license 30 days following arraignment. A conditional license allows you to drive to and from work, school, probation, the DMV, medical treatment, your child's school, your child's daycare provider, and 3 hours of free time per week.

If you refuse the test, you will not be eligible for a hardship license. You will be granted a hearing by the Department of Motor Vehicles where it will be determined whether you refused and proper protocol was used. If so, your license is suspended for one year, and you will be doing no driving whatsoever.

So, in a run-of-the-mill DWI case, the real question is: How much do you value driving?

There are certain times when you should not take a breath test:

  • If you have received two or more Driving While Intoxicated convictions in the past 25 years
  • There was an accident or injury

If you are convicted of a third DWI, you will likely be facing significant jail time. In addition you face a lengthy, possibly life long, suspension by DMV. Certainly, taking the test is a poor option.

The absolute scariest thing about drinking and driving is not the potential for serious criminal charges. I tell people all the time: If you drink and drive and get arrested you are lucky. The really scary part is if you hurt someone. Defendants face significant state prison time for vehicular assault or vehicular homicide. Obviously, if there is an accident and people are hurt, you have big problems. Just keep saying you want an experienced DWI lawyer until they give you one and don't do anything else.