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What Happens If You Refuse A Breath Test?

Often times our clients, prior to hiring us, were put in a difficult position by a police officer: to submit to a breath test and provide the officer with potential evidence of intoxication, or refuse to take the breath test and face revocation of their licenses.

At the point a person is offered, or requested, to submit to a breath test they have already been through a great ordeal – they have been taken from their vehicle, they have been put through field sobriety tests, and they may have even been forced to take a portable breath test.  Most people at this point are not able to think clearly through their options, even if sober.

What happens if you refuse a breath test?  The law in New York says that your refusal to submit to a breath, or other chemical, test means that your license will automatically suspended for 1 year.

That is the bad news.  The good news is that the refusal to submit to a breath test can make it more difficult, for the prosecutor to convict you and have you subjected to the harsh penalties associated with a DWI.  While the police officer can arrest you for a DWI without a breath test, he or she cannot arrest you for Aggravated DWI unless you take the test.  In some situations, not taking the test can save a person from facing even more serious charges and harsher penalties.

If you do refuse to take the test, you’re entitled to a hearing in front of a DMV Administrative Judge prior to having your license revoked.  We can defend you in those hearings and can delay or prevent revocation in many instances.

If you would like to learn more about this please give me a call at (518) 300-1331.  Ask to speak to me, Eric Schillinger, I am an Albany DWI Defense Attorney.  I promise that you and your case will be treated with the utmost respect and dignity.  The call is completely confidential.



How To Get Driving Privileges After A DWI/DUI Arrest

One of the most difficult aspects of a DWI arrest is that once you have been arrested you will have your license taken away while the case is pending. That means that while your case is handled you can’t drive.  If you’re convicted of a DWI or DWAI you can lose your license for 90 days to six months on a first time offense.  For most of my clients the prospect of not being able to drive for half a year can be utterly devastating.

We are here to help with all of the issues our clients face with their case, and we want to help you get your ability to drive back as quickly as possible.  We want you to be able to get back to work, to take your children to school, and family members to medical appointments.

New York law allows for your license to be suspended even while the case is pending, and that suspension period doesn’t include the 90 day to 6 month suspension that follows a conviction.  That means that you’re suspended while you defend the case, and then also following a conviction.  This is why we do everything possible to make sure you don’t lose your driving privileges for as long as possible, and for as short a time period as possible.

When you fail a breath test we request what’s called a Pringle Hearing, which allows us to challenge the evidence that the court uses to suspend your license.  When the court does have the evidence it needs to suspend your license, we will make an application to the court for hardship driving privileges, which allow you to continue to drive to and from work, to medical appointments and to court.

When you maintain driving privileges we have the time necessary to defend you from the DWI charges properly, and it allows you to get back to normal faster.

There are several ways to get driving privileges restored after a DWI arrest.   With some basic information from you we can submit an application to the judge and argue why you should be allowed to drive even though you’re suspended due to DWI charges.

If you would like to learn more call us at (518) 300-1331.  Ask to speak to me, Eric Schillinger, I am an Albany DWI Attorney who, promises that you and your matter will be treated with complete respect and dignity.



Will I Lose My Job After A DUI Arrest Or Conviction?

I find that one of the major concerns my new clients have regarding their DWI/DUI case is whether or not they will lose their jobs.  This is a common sense, realistic worry, especially in an economy where good jobs are scarce.

The first simple fact is that most people will not lose their job as a result of an arrest, however, there are complications with a DWI arrest and a failed breath test or a refusal that require an attorney to perform expert and delicate work.  The immediate loss of your driving privileges after a DWI arrest can trigger significant difficulty from your employer.  We can help with that.

As for losing your job after a conviction – that is on an employer by employer basis.  But there are several types of jobs that having a DWI conviction can cause trouble for: teachers, doctors, nurses, truck drivers with a CDL, police officers, and those serving in the military.

We work diligently to protect our clients not just from the impact of a DWI arrest, but we also work to protect you from what may happen if you are convicted.

If you would like to learn more about who we are, and how we can help, give us a call at (518) 300-1331.  Ask to speak to me, Eric Schillinger, I am a DWI Attorney in Albany who represents clients all across the state in these types of cases.  Your call is confidential and without any obligation.


Can I Drive To Work After A DWI?

One of the most commonly asked questions we receive is whether or not a person can drive after they have been arrested for a DWI.  Most people are completely unaware of the fact that if you fail to take a breath test you lose your license, and if you take the breath test and fail it, you also lose your license.  On top of that most people feel mislead by the threats officers make regarding the breath test and take a breath test when it might not be in their best interests.

If you have been arrested for a DWI you know that the officer told you a refusal to take the test meant you would lose your license, automatically, for one year.  He also that said if you failed the breath test you might only lose if for 90 days.  What the officer did not tell you is that if you were to end up being convicted of a DWI charge you could lose your license for six months, even on a first offense.

How do we get you back and forth so that you can take care of your kids, take care of your family, and keep your job without a license?

There are multiple different ways that we go about helping you get yourself back on the road.  The first is to challenge the court’s ability to suspend you’re license in the first place.  If the court has the legal basis to suspend you, then we move on and make an application for a Hardship Driving Privilege. That allows you to drive to and from work, court and medical appointments for yourself and your family.

If you would like to learn more give us a call at (518) 300-1331.  Ask to speak to me, Eric Schillinger, I am a DWI Attorney in the Albany, NY. area who promises to treat you and your case with the respect and dignity that you deserve.  The call is confidential and without any obligation, if I agree to take your case on we will work for you the way we would work for our family.


Can A Breath Test Be Beaten?

One thing people quickly come to realize after failing a breath test is that they should never have taken it in the first place.  Most people end up taking a breath test for one of three general reasons (1) they want to comply with the police officer and do not know their rights, (2) they feel that since the police officer told them they passed the field sobriety tests that they should pass this one too, and (3) they are told that if they refuse on a first offense they lose their right to drive for one full year.

People understand that by failing a breath test they have now made their lives that much harder, but how do you get around it? Is it possible to beat a breath test? In one word: Yes.

New York State’s Police Agencies use a breath testing device called the the BAC Datamaster.  The device is considered  reliable by the police, district attorneys, and the courts.  It doesn’t mean the device is fool proof.

There are several attacks that we make on the machines, and several attacks that we make on the specific machine you took your test on.  We also litigate (fight) with the prosecutor over whether or not you should have even had to take the breath test to begin with.  From there we attack the method of the test, the procedures used in the test, the application of certain scientific principles, machine calibration, machine error, user error, and certain health issues.

If you would like to learn more about how we can help beat your breath test give us a call at (518) 300-1331.  Ask to speak to me, Eric Schillinger, regarding your case.  I am a DWI Attorney in Albany who, if I take your case on, promises that you will be treated with the dignity and respect that you deserve.


What Happens to My Licence After a DWI or DUI Arrest?

A common question we get asked is “what happens to my license if I’m arrested for DWI or DUI?”

New York State has a law called  Prompt Suspension, which means that a judge can suspend your drivers license before you’re convicted of a DWI if he has “reasonable cause to believe” that you drove your car with a blood alcohol content (BAC) higher than .08.

If the police and prosecutor provide the court with the report from a breathalyzer test along with some other paper work, and that report shows that you’ve got a BAC higher than .08,  the judge will suspend your licence prior to your case being decided.  That’s right – in NY State, as long as your charged with a DWI, the court can take your licence away.

Before the judge takes your licence , you’re entitled to something called a Pringle Hearing.  That’s a miniature “trial” with the judge to determine whether or not prosecutor has provided the necessary evidence (the paperwork from the breathalyzer) that  the court needs to take your licence.  If the court has the paperwork in proper form, and you don’t have any other defense, you get suspended.  If you luck out and the paper work has been lost or not filed, you won’t be suspended.

Now, if you refuse to take the breath test, you will still be suspended. New York State’s Vehicle and Traffic Law requires all licensed drivers to submit to a breathalyzer when lawfully asked to do so by a police officer.  If you refuse to do so, the DMV suspend’s your licence for one year.

When it comes to DWI and your licence, the breath test it can seem like a  no-win situation – if you fail it you get suspended, and if you refuse it you get suspended.   But it’s important to remember that you don’t have to take the breath test and there are situations where you might benefit from not taking it.

In NY the legal limit is .08.  If you have a BAC of 0.08 to 0.17 that’s a misdemeanor DWI charge (VTL Section 1192(2)).  You’ll face a licence revocation of 6 months, plus a fine between $500-$1,000, plus the risk of a year in jail.

If you have a BAC of 0.18 or higher its an Aggravated DWI (VTL Section 1192(2-A).  That means your licence is going to be revoked for at least one year and you will face a fine between $1000-$2,500.  You can also be thrown in jail for a year on this charge.

If you refuse to take a breathalyzer a police officer can still arrest you for a DWI (VTL Section 1192(3)), based on his or her observations of your sobriety.   But, and this is important, because there’s no established BAC if you refuse, they can’t charge you with an Aggravated DWI in that situation.

It boils down to mitigating your risk.  If you refuse, you can’t be charged with an Aggravated DWI, but you will face a one year licence revocation.  If you don’t refuse, your may loose your licence for less time in the long run, but if you’ve had more than a couple drinks, you risk being charged in the aggravated category and subjecting yourself to stiffer fines and a one year revocation.

Its not an easy decision to make on the side of a road with a police officer barking instructions at you.  The best and safest decision  of course, is to simply not drive drunk, but if you find yourself in this situation you should consider refusing the test if you’ve had many drinks.  While you’re guaranteeing the loss of your licence, you’re also guaranteeing that you won’t be charged with an Aggravated DWI.

If you would like to learn more give us a call at (518) 300-1331.  Ask to speak to me, Eric Schillinger, I am a DUI Attorney in Albany who promises to treat you and your case with the respect and dignity that you deserve.  The call is confidential and without any obligation, if I agree to take your case on we will work for you the way we would work for our family.