DWI defense attorneys in New York are split over a very basic question: if you are stopped by the police for suspicion of DWI, should you take the breathalyzer exam? To blow, or not to blow? The first answer is, it depends. The second answer is, in the end, it’s up to you.

Opinion is split because two different things begin when a person is arrested for DWI in the state of New York. Firstly, local law enforcement will initiate a criminal prosecution, and secondly, the New York State Department of Motor Vehicles begins a license suspension procedure.

Some attorneys advise drivers to refuse to take the breathalyzer exam. A breath test provides evidence in the criminal case, so why would you want to give evidence to the prosecution, especially if you’re guilty? If you’re certain that you are nowhere near the legal blood alcohol content (BAC) limit, you may want to go ahead with the breath exam, but if you’ve had even one drink, there’s just no way to be certain about being over or under the limit.

Other attorneys say just go ahead and take the test, guilty or innocent, particularly if like most New Yorkers, you rely on being able to drive. Typically, after an arrest for DWI, your license will be suspended during your arraignment. If you’ve submitted to a breathalyzer test, your DWI attorney can apply for a conditional “hardship” license, and 30 days after your arraignment, a conditional license will allow you to drive to and from work, school, childcare, healthcare appointments, and courtroom dates. But if you refuse to take the breathalyzer test, you will not be eligible for a hardship license. Your license will be suspended for a year, and you will not be allowed to drive at all.

When it is time to collect a sample of blood, breath or urine, the suspect will be advised of the impending sample collection by a police officer / investigator. If the person refuses, the law enforcement agent will advise the suspect of the consequences of a refusal, which typically include fines, revocation of driving privileges, and, depending on a person’s prior DWI convictions, confinement.

If the collection is refused, the law allows the state two options; the first is that the state, through law enforcement agents and trained personnel, can take a sample by force after getting permission from a judge. This is generally the case when a suspected DWI suspect is believed to have caused another person’s injury or death. If a judge refuses to grant permission for a sample to be taken by force, then the state can still move forward with a prosecution by claiming that it was the person’s “guilty conscience” which compelled the person to refuse to provide a sample.

DWI defense attorneys do agree that, despite these consequences, you should refuse to take the breathalyzer exam if there is an accident or an injury, or if you have been convicted of DWI two or more times in the previous 25 years. If there is an accident or injuries, take no breathalyzer test and remain silent until you can speak to a DWI defense attorney. If you’re facing any DWI charge, you will need the counsel and help of an experienced DWI defense attorney.

A good DWI defense lawyer will evaluate your case, clarify your options, defend your rights, and steer you through the legal process. An experienced DWI defense attorney may even find grounds to have your charges lowered or dismissed. If you’re facing any DWI charge, speak right away to a good DWI defense lawyer.