If Stopped for DWI - Do You Take the Test?

This is a common question and not as simple as most think. It depends upon your state's laws and your DMV's rulings. In NY, its BEST to Take The Test IF YOU AREN'T TOO intoxicated. That's because if you don't take the test, you will usually have your license revoked if you refuse the test.

1. In NY, it's BEST to take The test if you AREN'T too intoxicated because if you refuse, you will likely have your license revoked by the DMV.

It's usually best to take the breath test in NY because if you don't take it, you will usually have your license revoked by the Dept. of Motor Vehicles and you may be charged with another crime as well. However, if you take the test in most counties and your result is low (usually under a .12) there is often a better chance of getting a plea reduction than if you have a test refusal. On the other hand, if you have a prior DWI Misdemeanor conviction, then it may be best to REFUSE the breath test because there is a likelihood that you'll be charged with a felony on the second time around and by refusing the test, you have a better ability to fight the charges. However, most police departments are now videotaping everyone who doesn't take the test, which can either work for you or against you depending upon the effects of alcohol upon you. If you look sober on the video and they don't have a test result, you have a better chance of acquittal after trial.

2. If You Know You're Too Intoxicated, It's Best To Not Take the Test

In some instances, clients know they aren't doing well and they know they probably shouldn't take the test. In that case, it's best to not take the test because if it comes back over .18 it can be dealt with more severely by the prosecutor. In those instances, it's better to not have a test against you. Any video the police take of you will be damning enough. If they have a high breath test as well, you may eliminate all chances of a plea reduction. However, if you don't take the breath test, you will usually suffer a revocation of your license by the Dept. of Motor Vehicles. If you take the breath test and the reading is reasonably low (under .12) and it's your first offense, you will probably get a plea offer to an Impaired DWI and a 90 day suspension of your license. The difference between a suspension and a revocation is you automatically get your licensee back with a suspension, but have to start the entire process over to get your license with a revocation.

3. If You Have a Prior DWI, It's best Not to Take the Test

If you have a prior conviction for DWI, it's usually best to NOT take the breath test. It will give the Prosecutor less evidence with which to convict you of a felony. If you have more than one DWI conviction, then it's definitely better to not take the test. Without the test, the DA only has the police officer's testimony and perhaps a video of you at the police station showing how intoxicated you looked at that time. Many times a person who is sitting quietly will be given the benefit of the doubt by a jury if there is nothing more than that against you. That's because they anticipate and expect someone who is drunk to act drunk and that's usually not sitting quietly on a bench.