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April 29th, 2003

Legal Opinion – DWI Tests

by Thom McVann

Since my recent legal article on the subject of Driving While Intoxicated appeared in the last issue of this publication, I have received numerous inquiries asking whether or not a driver should submit to a breathalyzer or intoxilyzer test, if asked.

It is the writer’s opinion that the answer to the question depends very much on the circumstances the particular driver finds himself or herself in at the time. If there has been a serious accident and the driver has consumed any alcohol within the past 24 hours, the wise course is to refuse to provide a breath sample or a blood sample to the police for testing. A driver who has been drinking and is in a serious accident could be charged with felonies and it would be unwise to provide any evidence against yourself.

If the driver has no prior alcohol related driving convictions anywhere, anytime in the past, and does not feel particularly intoxicated, it may be wise to submit to the test. You should remember that refusal to take the test will lead to revocation of your driving privileges in New York. You should refuse to take the test, however, if it is going to provide the police with evidence of a high concentration of alcohol in your blood. Taking the test will not help the driver and may very well make defense of the criminal case more difficult.

There are two aspects to a Driving While Intoxicated: (1) The criminal charge under Section 1192 of the Vehicle and Traffic Law which can result in a fine or a jail sentence; (2) The administrative charge of being in violation of the Rules and Regulations of the Motor Vehicle Bureau, which can result in suspension or loss of license. Never try to protect your license by subjecting yourself to substantial risk of jail.

The best course of action is NOT to DRINK AND DRIVE. Take a cab, have a designated driver, choose a sober date and have him or her drive you home, call your mother, etc. However, if you do find yourself in police custody, contact your attorney and make no statements to the police.

Tom McVann is a prominent attorney who specializes in real estate and criminal matters. He lives and practices in the Hamptons. (Tel. 631-288-6500)

Filed Under: Articles | New York | Politics

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