DWI defense lawyers like myself are frequently asked this question. In the past, the answer was clear. However, with several recent legislative changes, the bright line between taking or refusing the test has dimmed. It is even more critical to have a DWI defense attorney who has extensive background in all aspects of DWI. My 50-year experience in this area is your best defense.
Should I Submit to a Chemical Test if I Am Arrested for DWI in Upstate New York?
If a driver agrees to take the chemical test, the door is left open to plea bargain a misdemeanor DWI down to a traffic infraction of Driving While Ability Impaired (DWAI). Attendance at a Drinking Driver Program would probably be required, and the motorist might be able to obtain a conditional license during the 90-day term of license suspension.
Each arrest situation is different, but generally, I would advise the driver to take the chemical test, providing there were no other aggravating factors, as an experienced DWI attorney,, I would advise the driver to take the chemical test.
Should I Refuse a Chemical Test if I Am Arrested for DWI in Upstate New York?
By refusing to take the chemical test, the motorist's license is subject to immediate suspension upon arraignment , with no driving privileges. At a Department of Motor Vehicle (DMV) hearing, which has to be conducted within 15 days from the arraignment, the administrative law judge can revoke the motorist's license for one year. There is a civil penalty of $500 and a $250 driver improvement fee (per year for 3 years).
Aggravating factors, such as resisting arrest, or If the DWI arrest followed a serious personal injury accident, or if it were a felony DWI, or if the motorist was a repeat DWI offender, I would advise my client to refuse the chemical test.
Recent legislative changes which affect the strategy for defense of a DWI arrest in Upstate New York complicate the above scenarios. I will address the deciding factors in "(Part II)".