Anyone suspected of drinking and driving is required to submit to a breath, blood or urine test at the request of law enforcement.

In an effort to avoid the possibility of suspected drunk drivers benefiting from not taking the breath test, New York State has passed several laws to discourage drivers from refusing the test.

A Rochester driver who refuses to submit to a breath test faces loss of driving privileges – even if the drinking and driving charges are dismissed.

Moreover, the fact that the driver refused the breath test may be used as evidence against the defendant at trial.

Evidence that the defendant refused the breath test can be damaging at trial, as there is an inference that he or she refused the test based on a belief that the result of the breath test would be incriminating.

Before the prosecution may use the defendant’s refusal to take the test as evidence at trial, they must establish that (1) the defendant was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and (2) the defendant persisted in the refusal.

To ensure that the defendant understands the legal ramifications of refusing to submit to a breath test, most law enforcement agencies now have written “Refusal Warnings” which they read to a defendant when asking him or her to submit to a breath, blood or urine test.

The second requirement that the defendant “persisted” in refusing the test, however, has been a more difficult area for the courts to address.

On the one hand, courts have tried to avoid allowing drivers to manipulate the breath test by attempting to recant a refusal after waiting to “sober up.”

On the other hand, the law indicates a driver who does not persist after understanding the implications of the refusing the test should not be barred from taking the test.

Because these two issues must be balanced by the court, whether a driver “persisted” in refusing the test usually must be judged based on the specific facts surrounding the request to take the test.

Someone arrested for DWI who refuses the breath test faces serious penalties. We can help you protect your legal rights. Call us at 585-484-7432.