10.0P. Adam Militello
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Should I refuse the Breathalyzer test?

P. Adam Militello, Esq.

The best choice is to not drink and drive – ever – but if you find yourself being pulled over by police after consuming any amount of alcohol, you have some decisions to make. First, you should remember that you have the right to counsel before answering any questions made by police. You should make good use of that right and call us at (585) 485-0025

If you get pulled over, please call. We are available after regular business hours, and we want to help.

No matter what else happens, politely decline to perform the so-called "Field Sobriety Tests."

Standardized Field Sobriety Tests include the One Leg Stand, Walk & Turn, and Horizontal Gaze Nystagmus. These tests are shockingly inaccurate. Do not take these tests, even if you are sober, because you will likely fail, and you will be prosecuted based on those tests you failed while you were sober. You should also politely decline to take the so-called Alphabet Test, Counting Test, or Finger-to-Nose Test. Sober people fail all these tests regularly. Do not take them.

When to Refuse the Breath Tests:

If you have a prior DWI conviction within the past ten years and are pulled over at a point in time when you are likely to have a BAC over .08, you might want to refuse the breath test, and again, refuse each and every field sobriety test requested by police. If you politely tell the police officer that you want to speak with an attorney before answering any questions, and then sit silently in your vehicle, declining to take any field sobriety tests, law enforcement may be left with very little admissible evidence to use against you. That is especially true if you have not committed any violation of the NYS VTL, making it perfectly legal to also refuse the Alco-Sensor breath screen.

There is an important point that needs to be made here – whether you refuse the Breathalyzer (DataMaster) test or not, you really should refuse to perform all the field sobriety tests. The police officer may yell at you, and may threaten you with spending the night in jail, but it makes no sense agree to the field sobriety tests. Police can use those field sobriety tests to convict you of DWI – even if you aren’t drunk – so don’t perform them!

It is true that your refusal will result in the DMV attempting to revoke your license for at least a year, but in the situation described above, where you are facing a felony charge and incarceration, you have to make a decision between driving privileges and jail (or even prison) time. Choose wisely.

When you should take the Breathalyzer Test:

If you have never been convicted of DWI, and if you have consumed no more than 2 bottled beers over the prior 4 - 5 hours, you may be better off taking a "Breathalyzer" chemical test. It should show that your BAC was below a .08%, and taking the test could save your driving privileges.

Again, even if you choose to take the test, you should not take the field sobriety tests. I have seen sober attorneys attempt to take those tests and fail. Field sobriety tests are designed to be failed, so you should never take them.

Contact a Rochester DWI Lawyer by calling 24/7: (585) 485-0025

If you have been charged with a DWI, contact The Militello Law Firm today. We can help.

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