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.