When Should You Refuse a Breathalyzer? It depends on your expected BAC.

Most drivers in NY don’t realize that refusing to take a breathalyzer or chemical test is an automatic 1-year license suspension, and worse yet, it can’t be converted to a “revoked” license that would allow them to at least drive to-and-from work and doctor’s visits.  Police officers are required to tell drivers about the 1-year suspension if they refuse, but most drivers will tell you the police didn’t explain it, and had they known, they would have just taken the test.

So when should you refuse? That depends on how the night went.

To get a Driving While Impaired you have to blow a .05 - .07.  A Driving While Intoxicated is .08 - .017.  An Aggravated Driving While Intoxicated is a .018 and higher.  Each carry more severe and heavier penalties.

The general idea is that if a driver’s very intoxicated, they may want to refuse. The reason is, if they think they’re going to blow .08 or higher (particularly if they think it’s going to be closer to .018), they’ll likely still get a 1-year suspension anyway based on that high of a Blood Alcohol Content (BAC). At least if they don’t blow, they won’t know exactly how high it was.  A police officer can testify about the driver’s condition, but you don’t want to go to court with proof of such a seriously high BAC, so a refusal may be better in this case.  On the other hand, if a driver thinks they’ll blow a Driving While Impaired (.05 - .07) or lower, it’s better to take the breathalyzer because that type of BAC will likely not result in a 1-year suspension, and the driver can work out a good deal through plea bargaining.

With all that said, the most important thing to have when dealing with any traffic or criminal matter is sound legal advice and representation.  If a client does have to go to court on a matter like this, showing goodwill to the judge by taking online driver’s education courses and other online education courses goes very far.