Implied Consent Law for Blood, Urine, Breath, or Saliva Tests

Under VTL § 1194, every motorist who drives on a New York public highway is deemed to have consented to a chemical test of breath, blood, urine, or saliva for the purpose of determining alcohol or drug content, provided the test is administered within two hours of arrest (with judicially recognized exceptions for refusal cases). This is the "implied consent" rule. You consented by getting behind the wheel.

Refusal Triggers a Civil Suspension

Refusing the chemical test triggers an immediate suspension of your driver's license at arraignment, followed by a DMV refusal hearing. If the hearing officer finds that (1) the police had reasonable grounds to believe you were driving while intoxicated, (2) you were lawfully arrested, (3) you were given the proper refusal warning, and (4) you refused, your license is revoked for at least one year and you pay a $500 civil penalty ($750 for a second refusal within five years).

The Refusal Warning Must Be Clear

The required warning, in substance, is: "If you refuse to submit to a chemical test, your license will be immediately suspended and subsequently revoked for refusal to submit to a chemical test, whether or not you are found guilty of the charge for which you were arrested. If you refuse to submit, your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest." If the warning was incomplete, garbled, or not given at all, the refusal cannot be used against you.

Refusal at the Roadside vs. at the Station

The portable breath test (PBT) at the roadside is a screening device, not the "chemical test" governed by implied consent. Refusing the PBT is a different matter from refusing the calibrated station-house instrument. The two are often confused by police and defendants alike, and the confusion is itself a defense point.

Blood Tests Usually Require a Warrant

The Supreme Court's decision in Missouri v. McNeely made clear that nonconsensual blood draws ordinarily require a warrant. New York follows that rule. If the police drew your blood without a warrant and without an exception (true exigency, valid consent, or a court order under VTL § 1194(3)), the blood evidence can be suppressed.

If you were arrested for DWI and refused or were forced to take a chemical test, call us at 212-233-1233 or email email@goodwindefense.com.