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DWI in Queens: What Happens If I Did Not Take the Breath Test?

When a law enforcement officer stops a motorist and has reason to believe the motorist has been driving while intoxicated, or DWI, the officer will typically ask the motorist to perform a series of field sobriety tests. If the results of those tests further confirm the officer's suspicions, the motorist will be arrested and charged with DWI. Once at the station or jail, the motorist will likely be asked to submit to a chemical breath test that tests the motorist's breath for the presence of alcohol. Because the results of a breath test can be very damning in a criminal prosecution, some motorists refuse to submit to the test. If you were arrested for DWI in Queens and refused the test, what happens if you did not take the breath test?

Like most states, New York has an implied consent law that essentially says when you get your driver's license you give your consent to submit to a chemical test should you be arrested for DWI in Queens. This does not, however, mean that you give up the right to refuse the test. Instead, it means that there are consequences if you do refuse the test. In Queens, you face a one year driver's license suspension for refusing a breath test.

After your arrest you will be notified of the administrative suspension based on your refusal to submit to the chemical test. You do have the right to contest the suspension at a hearing held at the Department of Motor Vehicles. If you wish to contest the suspension you will have to convince the administrative law judge that you did not intentionally refuse the breath test. Because it is a civil hearing, not a criminal hearing, the burden of proof is much lower. Essentially, this usually means that the ALJ must be convinced that more likely than not you intentionally refused the test.

One other important point to consider is that in Queens, your refusal can be used against you at a trial. In other words, if you decide to take your DWI case to trial, the prosecutor may be able to introduce the fact that you refused the test at trial. Explaining why you refused the test can be problematic and may be taken as a sign of guilt.

If you have specific questions regarding a DWI arrest in Queens, contact the criminal defense attorneys at SIMON & GILMAN, LLP.

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