Legal First Aid DWI in NY

What is the name of your state? NY

If in New York you are pulled over and asked to take a breathylyzer test and field sobriety test and what not and you know you are going to blow positive should you refuse to take the tests?

No I am not planning on going out and drinking and driving so no need for lecture. Just curious as to what would be the best "legal first aid" in a situation like that.

Thanks

[CdwJava]

Well, its a two-edged sword. A refusal to take the tests could still resault in an arrest and a mandatory test. A refusal to take the mandatory test could result in charges AND a license suspension AND a forced blood draw (depending on state law) ... that would mean license revocation for the refusal, evidence via the blood, and introduction of your refusal as consciousness of guilt.

Some attorneys say that if you know you are going to pass, go right ahead. others say don't do it at all.

You'll have to decide for yourself.

- Carl

[BL]

Well a refusal will lead to an arrest anyways . If I'm not mistaken an automatic taking of your license .

The Officers testimony will be used against you .

Of course all this will depend on the circumstances of the stop .

If you do not refuse , are not that intoxicated and no other issues accept for intoxication , you have a good chance of making a plea deal , getting a conditional license , taking a DUI course , and if you do well getting your license restored .

You should know that 2 DWI convictions within 10 years is a felony and could lead to prison time .

Originally Posted by Blonde Lebinese

Well a refusal will lead to an arrest anyways . If I'm not mistaken an automatic taking of your license .

The Officers testimony will be used against you .

Of course all this will depend on the circumstances of the stop .

If you do not refuse , are not that intoxicated and no other issues accept for intoxication , you have a good chance of making a plea deal , getting a conditional license , taking a DUI course , and if you do well getting your license restored .

Well fortunately I am in the group that doesn't drink and drive at all, but I have seen so many people do it and get caught in my years. I just can't help but wonder what is the better of the choices. Like Carl said it is a double edged sword.

I would like to solicit any other response from New Yorkers. There must be lesser of the two evils (submitting to tests vs not submitting)

Thanks

[You Are Guilty]

Originally Posted by thepizzaguy

Well fortunately I am in the group that doesn't drink and drive at all, but I have seen so many people do it and get caught in my years. I just can't help but wonder what is the better of the choices. Like Carl said it is a double edged sword.

I would like to solicit any other response from New Yorkers. There must be lesser of the two evils (submitting to tests vs not submitting)

Thanks

There is no single "correct" answer. (Very) generally, if you really have not had much to drink (i.e. no more than 2 drinks within the past hour), you may as well take the test. Of course, if you're drunk, you probably lost your ability to accurately gauge your inebriation, so this "rule" is of limited value.

If nothing else, do not be a prick to the officer, especially if refusing the test. Doing so will almost certainly get you a free trip to the local hospital where you will get your blood drawn.

While I do not handle DWI cases, my friends who do tell me, all else being equal (mind you, it never actually is), they prefer it when the test hasn't been taken, as they can have a slightly easier time arguing against the officer's perceptions, as opposed to the mechanical state of breathylizer. Of course, this method doesn't necessarily help you keep your license.

[garrula lingua]

In court, and with DMV, refusal is worse.

For most defense attys, it's an easier case to try (& lose) when no tests (less complicated, usu no experts, ergo cheaper).

My advice to defendants: do the test.
But, as Carl said, it depends on whether you're toasted or possibly under .08 (& don't have a 'rising' defense).

Usually, the case can be easily proven without a test, due to the driving and the symptomology noted by the cop (odor, eyes, slurred speech, unsteady) and, best of all, the field sobriety tests (fsts) which prove impairment.
And, usu the erratic driving that attracted the cop to begin with

[justsomeguy]

Here's the truth, the breathalyzer is only a tool used to convict people if people take it and they are below .08 they will still go to jail and get prosecuted, if they are over .08 it doesnt matter what the cop says, they are legally drunk acorrding to the machine. Why would anyone want to take it. There have been convictions in my county of people at .06, so what is the use.

for further reasoning why NEVER to take the breath test ... check this out.. this District Attorney was pulled over and requested to take a breath test...

guess what he did... declined.

do you need any more arguments?

[url]http://dallaslawyer.blogspot.com/2005/05/if-district-attorney-refuses-to-take.html[/url]

[CdwJava]

In my state if you refuse, we can force blood. I actually like it when I get a refusal because it not only guarantees a license suspension, but I also get blood evidence which takes the wind out of the court fight. When we have blood, we almost never get beyond Prelim if the result is .08+ ... if there is good cause for the stop, it's all done except for the plea deal.

- Carl

[BL]

Originally Posted by justsomeguy

Here's the truth, the breathalyzer is only a tool used to convict people if people take it and they are below .08 they will still go to jail and get prosecuted, if they are over .08 it doesnt matter what the cop says, they are legally drunk acorrding to the machine. Why would anyone want to take it. There have been convictions in my county of people at .06, so what is the use.

for further reasoning why NEVER to take the breath test ... check this out.. this District Attorney was pulled over and requested to take a breath test...

guess what he did... declined.

do you need any more arguments?

[url]http://dallaslawyer.blogspot.com/2005/05/if-district-attorney-refuses-to-take.html[/url]

A stop for DUI or DWI does not automatically guaranty a trip to Jail . They can issue an appearance ticket . It all depends on the circumstances , although NY has become tough on drunken Driving .
A stop

[SillyPuddy]

My understanding is that the states are moving toward changing the laws to assess basically the same penalties for a refusal one would get if the blew .08 or higher. Probably at some point in the near future, there will be no "advantage" to refusing the tests.

[BigMistakeFl]

There was a time when refusing could mean a "pass". That was a pretty long time ago, much case law has gone down since, most loopholes filled by changing the laws. When you get caught today, you're pretty much caught.

[garrula lingua]

Originally Posted by justsomeguy

Here's the truth, the breathalyzer is only a tool used to convict people if people take it and they are below .08 they will still go to jail and get prosecuted, if they are over .08 it doesnt matter what the cop says, they are legally drunk acorrding to the machine. Why would anyone want to take it. There have been convictions in my county of people at .06, so what is the use.

for further reasoning why NEVER to take the breath test ... check this out.. this District Attorney was pulled over and requested to take a breath test...

guess what he did... declined.

do you need any more arguments?

[url]http://dallaslawyer.blogspot.com/2005/05/if-district-attorney-refuses-to-take.html[/url]

Note: the DA was accused of HIT AND RUN and DUI.
He refused under different circumstances ... he didn't want to provide motivation for the 'hit and run' which his BAC would have afforded his Prosecutor.

Ok... No more info needed on this subject. I am taking Carl's advice and that is no advice.

You really have to decide on your own about this one, if it happens to you.

good luck and don't drive drunk