Do I Have To Take The Standardized Field Sobriety Tests?
NYS DMV driver’s license or privilege aside; the short answer is: you don’t have to – but there will definitely be consequences!
When a motorist is placed under arrest for DWI, the police may ask them at the scene of the arrest if they would be willing to take a chemical breath test later at the station or barracks. This is not to be confused with the Preliminary Breath Test (PBT) that was just administered at the scene. At this phase, the motorist has just gone through a multitude of other field testing as well being placed under arrest and handcuffed. Now they are at a police station and they need to make a critical Shakespearean decision worthy of Hamlet “take the test or not to take the test!” It’s not an easy choice because most people have been given all sorts of misinformation all their lives about what to do if they’re arrested.
In New York, up to and including about 2016, the general advice would have been to refuse to take the breath test under most circumstances. However, at this point that is bad advice because some District Attorney’s Offices have modified their policies on this question. This is one area of law where there are few exceptions, if any, in terms of negotiation of plea bargain. In some DWI cases, the People may be looking for probation or jail time based upon the history and specifics of the case. In those cases, it may be about whether you can negotiate any reduction or at least avoid probation.
For example, around 2016 the Westchester County District Attorney’s Office changed their policy and decided to no longer negotiate a refusal case as a general policy proposition. That does not mean that they do not make very limited exceptions, but by and large, that is their hard and fast rule – no offer of a reduction where the motorist refused to take the chemical breath or blood test. Before this newer policy was in effect, they were willing to offer a reduced plea even where a motorist refused to take the said test. So, in that situation, location, and time the smart thing might have been to decline the test. That is because in terms of the criminal case, the prosecution would not have a BAC test result and their case could only be premised upon observations of intoxication vis-a-vis the SFSTs. There would still be NYS DMV consequences, but a refusal weakened the People’s criminal case against the accused.
At this stage it is much, much more of a case by case analysis as to when appropriate to say, “Yes, I’ll take the test” or “No, I refuse”. For, the true answer is – it depends! It most certainly depends upon the individual’s circumstances.
Where were you arrested? Were you driving? What is your record? Do you have any priors? Was there an accident? Were there any injuries? How much did you really drink (perhaps avoid a high BAC)? If you call an attorney from police headquarters the attorney will need to know this information in order to give you some reliable advice. But that conversation may be recorded and within earshot of the police and you may feel quite uncomfortable giving that information over the telephone, particularly, if inebriated.
I’d also like to know the motorist’s body weight, how much they actually drank, and when they drank it to try to make any kind of rough calculation as to whether or not the BAC (Blood Alcohol Concentration) is low, moderate, high, or very high. If they had an accident, if they had priors, or if they have a high BAC, then my answer may very well be to refuse to take the test. If, on the other hand, we can agree the motorist is being honest with me, they don’t have a prior, there’s no accident and it doesn’t sound like they drank a lot, then I will likely recommend they go ahead and take the test.
And, if the result was in fact a low blood alcohol content on the chemical breath test device, then that can be used affirmatively to successfully reduce a crime to a non-crime. For example, Driving While Intoxicated is a crime, but we may be able to get a reduced offer or finding at trial of Driving While Ability Impaired (DWAI) which is a violation and not a crime.
Some people might say, “I’ll just refuse, because then they won’t have the BAC and I’ll be able to use that in my case.” That may be true, but they need to understand that there are additional consequences to refusing a test. The New York State Department of Motor Vehicles construes driving in New York as a privilege and not a right. That means it can be suspended or revoked. When you get your license in New York you agree to take a breath test if requested to do so by a law enforcement officer. Even if you are an out-of-state motorist and you are just driving through NYS, this consent is imputed to you.
If you refuse to follow up and abide by your agreed-upon consent, the consequence is going to be an immediate suspension of your right to drive in New York State. You’ll be subject to a hearing to occur within 20 days and face at least a one-year revocation of your license (versus a six-month revocation for a DWI conviction in court. Those hearings are held in front of an Administrative Law Judge (ALJ), which means they were appointed and not elected. They essentially favor the DMV position and approximately more than 90% of refusal cases before them will result in a revocation of the motorist’s license or privilege to drive. And, there is no conditional license while the criminal case is still pending.
A typical criminal case may take two or three months (longer if it’s going to trial). As a defense attorney, it becomes problematic in terms of balancing the short-term needs of the client to drive sometimes, at least, and pursuing a long-term defense to the pending DWI charge. And that’s just for one leg of the DWI, i.e., the chemical breath test. Even if they do not have a breath test result to introduce as evidence in their case in chief, they will still have all the police SFSTs and observations of intoxication. They just don’t have the BAC detail which indicates “no person shall operate a motor vehicle while such person has 0.08 or more by weight of alcohol in their blood as shown by the chemical test of their blood” which in most instances is a chemical breath test on a DataMaster or Intoxilyzer device.
If there is an accident with injuries, the police may take the subject right to the hospital with a blood test kit and have their blood drawn and send it to a lab. If the subject is injured too, there could be a compulsory blood test taken at the hospital directed by law enforcement (or, sought by search warrant later by the prosecution). The blood test will come back with a more accurate result than a breath test. These days there are a lot of challenges to the breath test, but the blood test has an accurate protocol and BAC result. The results ordinarily take a few weeks to get back from the lab.
The subject’s driver’s license would typically be suspended at the arraignment which is the first appearance of a defendant with or without counsel. If they are alleged to have blown a 0.08% BAC on a biochemical breath test device or if there is a refusal as indicated, they’ll be suspended on the spot. If there is a refusal and they’re suspended, there is no right to drive at all until the hearing at the DMV about two weeks later.
If there is a breath test and there is a result of 0.08% or higher, the motorist will be suspended, but has a right to have a hardship hearing. This means that they will be seeking a very limited paper license from the court only to and from work, school and medical. At that hearing before the judge, they’re going to have to demonstrate there’s no viable public transportation and that it would be an extreme hardship for them to not be able to drive to work, meaning that it may cause them to lose their job or income. They cannot just demonstrate this with their own testimony; they would usually need someone else to testify for them and/or bring in a few week’s pay stubs from work.
If there is public transportation available to a Defendant, then do not make the application for it and find an alternative method of transportation. Frequently, though people can show that there is no viable option. There aren’t any trains in the area going east and west, buses don’t get out to remote areas, and taxis and Ubers may cost too much. Note: a check valve is in place – a suspended Defendant may qualify for a Conditional License or privilege after 30 days directly from DMV (if no other conditional license was issued within the past 5 years and valid license otherwise). The Conditional Driver’s License has nothing to do with the criminal court.
With proper evidence and witness testimony ready to present to the Court at the arraignment, you should qualify to get the hardship privilege – which will last throughout the entire criminal case. This is a procedure that cannot be accomplished without defense counsel; which again means anyone charged with a DWI would benefit from hiring counsel as soon as possible. If a motorist appears in court without counsel the court will suspend and require the accused to come back in a week or so with counsel. So, all they’ve managed to do is delay their arraignment but not avoid nor delay their license suspension. It is always better to have your defense counsel retained, prepped and ready to go by your side before the arraignment rather than afterward.
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