Anyone detained for suspicion of drinking and driving is assumed to have consented to taking a breath, blood or urine test under New York State law.
The term used by Rochester DWI lawyers to describe this assumption is “implied consent.”
Implied consent does not necessary mean that a driver can be forced to take a blood alcohol test, but it does mean that penalties may be imposed for refusing to do so.
These penalties include loss of driving privileges and very high fines.
In most cases, a defendant who refuses to take the breath test will not be forced to take it.
Instead, he or she will be charged with having refused to submit to a chemical test and face the penalties associated with that charge.
In cases where an allegedly drunk driver has caused a motor vehicle accident where serious injury or death occurred, however, it is possible for the police to force the defendant to submit to a blood alcohol test.
To obtain permission to force a defendant to submit to the test, the police must submit evidence to a judge who has jurisdiction where the accident occurred.
This evidence must establish that the police have a reasonable suspicion that the driver is intoxicated.
It is frequently submitted to the judge over the phone and may include descriptions of poor driving, an odor of alcohol, and poor performance on field sobriety tests.
If the judge is satisfied that the there is reasonable suspicion to believe the driver is intoxicated, he or she may issue a warrant to obtain the defendant’s blood alcohol score.
In cases where the judge issues a warrant to obtain a driver’s blood alcohol score, the police will usually have a blood test administered instead of a breath test.
A blood test is the easiest way to obtain a blood alcohol score from an uncooperative defendant and is generally considered the most accurate test.
We are experienced DWI lawyers who understand the law surrounding breath and blood alcohol tests.
If you have questions regarding your legal rights as a result of being charged with DWI, we can be reached at 585-484-7432.