Breath Test Refusals - Illegal?

Question: Is it illegal to refuse a breath test?

Answer: There are different types of alcohol screens. Sometimes it is legal to refuse a breath screen, and sometimes it isn’t legal.

The first type of breath screen that a police officer will typically administer is called an Alco-Sensor test. If a person who is driving has either been in an accident or has violated the Vehicle and Traffic Law in some way – for example, if they were stopped for speeding – then they are obligated under the law to provide a breath sample to a police officer who is asking for an Alco-Sensor test. Alco-Sensor tests are not admissible in court because they are not regularly calibrated, so they cannot be used to show precisely what a person's BAC is. However, if you take an Alco-Sensor test and it returns a positive result for any level of alcohol, a police officer then has a reason to request that you submit yourself to a chemical test, which is also given in the form of a breath sample.

The Rochester DWI lawyers at Jeannie D. Michalski, LLP have experience with breath test refusals. If you need a DWI attorney to help you with a breath test refusal, call Jeannie D. Michalski at (585) 351-2500 for a free consultation.

In Genesee, Monroe, Livingston, and Ontario counties, a BAC DataMaster machine is used to perform chemical tests. In my humble opinion, a BAC DataMaster is used in a way that promotes failure. There are two main reasons for this;

  1. The device is supposed to be self-testing. The machine will check its own systems, then report back that it is working. If a broken machine tells you that everything is ok, how do you know everything is ok? (I once had a police officer testify that a BAC DataMaster is a “scientific device,” and that it could not break. Imagine… a machine that cannot break)
  2. When a person blows into the machine, they do so through a tube. The only way that tube is cleaned between samples is with a blast of air. Can you clean a used straw with a blast of air? No, no you can’t.

Nevertheless, BAC DataMaster is a brand of device (like a Breathalyzer) that is used to measure a person's BAC, and people trust it. Just like the police officer who thinks it is a “scientific device” that cannot be broken, people have faith in this little black box.

It is not illegal to refuse to give a police officer a chemical test (like a BAC DataMaster) under any circumstance. The police officer might yell at you, get in your face, and threaten to arrest you, but he was going to arrest you anyway. The cop is only trying to get a breath sample so that he can charge you with DWI per se (VTL 1992(2)) in addition to Common Law DWI (VTL 1192(3)).

Remember, however, if you refuse to give a police officer a chemical test in the form of a breath sample into a BAC DataMaster machine, the DMV will suspend your license and, after a hearing, will attempt to revoke your license for one year for refusing to submit to the test.

So, to recap, as long as you haven't been in an accident, and as long as you weren't violating the Vehicle and Traffic Law in any way, shape or form, it is not illegal to refuse either a pre-screen test or a chemical test, such as a BAC DataMaster. However, there will be civil sanctions by the DMV for refusing the chemical test. An experienced lawyer can explain the different steps and how the sanctions imposed by the DMV can impact your driver's license and your criminal case.

Call the Rochester, NY DWI lawyers at Jeannie D. Michalski today for a free DWI consultation in Brighton or Avon. Our number is (585) 351-2500, and we are available 24/7.