Almost all Rochester area DWI arrests result in the accused driver being asked to take a breath test to determine his or her blood alcohol level.
When this request is made, some drivers will ask to speak with a lawyer before deciding whether or not to take the breath test.
A refusal to take the test will result in a hearing being held by the Department of Motor Vehicles for the purpose of determining whether the driver’s license should be revoked.
The DMV has issued specific directives to the administrative law judges overseeing such hearings regarding whether a driver who asked to speak with a lawyer and was not allowed to do so has legally refused to take the breath test.
It is the position of the DMV that when someone is asked to take a breath test and responds by asking to speak with an attorney, there is no legal requirement that this request be granted.
Simply asking to speak with an attorney, however, is not in itself a refusal to take the breath test.
Instead, the police officer must reasonably inform the driver in some way – either by words, conduct, or circumstances –that he or she is not going to be given the chance to consult with an attorney.
The driver is considered to have legally refused the breath test only if he or she persists in refusing to take the test after being informed that consultation with an attorney will not be allowed.
If the police officer fails to inform the driver of this fact and simply writes down that the driver “refused” the test based on his or her request to speak with an attorney, the driver is not considered to have legally refused the test and the DMV will not revoke the driver’s license based on the alleged refusal.
If you have been arrested for DWI and need help protecting your driving privileges, call us at 585-484-7432.
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