Nearly all drivers stopped for suspicion of drinking and driving in the Rochester area will be asked to take a breath test to measure the amount of alcohol in their system.
It is illegal to drive in New York State with a blood alcohol content of .08% or higher, and a score of .18% or greater would support the even more serious charge of Aggravated Driving While Intoxicated per se.
Because the results of the breath test may have a serious impact on the case against the defendant, some drivers will ask to speak with an attorney before deciding whether to submit to the test.
Regarding this issue, the courts have determined that if a person suspected of drinking and driving asks to speak with an attorney before taking the breath test, the police are not allowed to interfere with that request, which usually means allowing the driver to make a phone call to an attorney.
However, failure to reach a lawyer (which is not unusual given that such calls are frequently made in the middle of the night) cannot be used as an excuse for not taking the test, so long as the police provided an adequate opportunity to reach an attorney and clearly informed the driver that continuing to delay in taking the breath test would be considered a refusal.
Refusing the breath test has its own consequences, including driver’s license revocation and a large fine.
As a result, the attempt should be made to consult with an experienced DWI lawyer before making the decision to take or refuse the test.
If you have been arrested for DWI and need the advice of an experienced attorney, we can help you. Call us at 585-484-7432.