BREATH TEST REFUSAL

BREATH TEST REFUSAL

FORMER PROSECUTOR with over 20 plus years of experience.  When he was a prosecutor, Luigi was assigned to a specialized bureau in the District Attorney’s Office that exclusively prosecuted Driving While Intoxicated by alcohol and Driving While Ability Impaired (DWAI) by Drugs.  This was an elite unit that you had to be asked to join based on merit and was comprised of the most experienced trial lawyers in the District Attorney’s Office.  While in that unit, Luigi SUCCESSFULLY tried several DWI/DWAI by Drug jury trials with a 100% conviction rate and litigated many pretrial suppression hearings on a wide variety of constitutional issues where the suppression of evidence was at stake.

As a result of his accomplishments in that bureau, Luigi was promoted to the Felony Trial Bureau in the District Attorney’s Office where he handled complex Felony DWI/DWAI by Drug cases including those involving serious physical injury and death.  Unlike many lawyers, Luigi has a unique knowledge of the science of DWI/DWAI by Drug cases.  He also has extensive knowledge of how the police conduct these investigations including the administration of Standardized Field Sobriety Tests and is intimately familiar with the strategies to attack the government’s case.

Clients should feel confident that while plea bargaining of a case is always the first strategy to resolve a matter, if clients wish to fight their cases by not pleading guilty, Luigi has the ability, expertise and experience of litigating DWI/DWAI by Drugs with a high rate of success.

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BREATH TEST REFUSAL IN NEW YORK EXPLAINED

Whenever a person is suspected of driving while intoxicated by alcohol or driving while ability impaired by drugs in NYS, police officers will often ask the motorist to take two types of tests to determine whether alcohol is a factor.  The first test is usually at the roadside of the stop and is referred to as an Alco-Sensor Test or a Preliminary Breath Test (PBT).  The results of a PBT are not typically admissible at trial and the refusal to take such a test does not result in any additional charges.  The results of a PBT are generally used to establish probable cause to arrest.  In addition, if a motorist is suspected of driving while ability impaired by drugs only, police use the PBT results to rule out alcohol because a motorist may be also be charged with being under the influence of the combination of drugs and alcohol.

Once a motorist is arrested for DWI alcohol, police will ask the motorist to submit to a second test known as a chemical test.  This is usually referred to as a breathalyzer test even though the standard breathalyzer hasn’t been used in New York for quite some time.

If a motorist refuses this test, they can still be charged with Common Law DWI which allows prosecutors to attempt to prove guilt without a Blood Alcohol Content (BAC) reading.  Instead, prosecutors will try to establish guilt by using the motorist’s incriminating statements, evidence of an accident or erratic driving and any results of the performance of standardized field sobriety tests (SFSTs).   

DID YOU KNOW THAT….

  • In NYS, a police officer may only ask you to submit to a chemical test to determine blood alcohol or drugs in your blood if the officer has reasonable grounds to believe such person to have been operating a motor vehicle in violation of one of the subdivision of Vehicle and Traffic Law (VTL) section 1192 and within two hours after such person has been placed under arrest for any such violations or within 2 hours after a breath screening test indicates that alcohol has been consumed and in accordance with the rules and regulations established by the police force of which the officer is a member.
  • When an officer properly asks you to submit to a chemical test, a refusal to submit to a chemical test can result in, among other things, a revocation of your NYS driver’s license for a minimum period of one year.  You are entitled to a DMV Administrative Hearing to challenge the allegation of a refusal.  That hearing is independent of the criminal case and is civil in nature and deals exclusively with whether your license will be revoked or not.
  • If you go to trial, the prosecution can introduce your refusal to show consciousness of guilt.  However, in the context of the criminal case, you have the right, before trial, to litigate whether you actually refused a chemical test and whether a jury should be able to hear and consider evidence of the refusal.
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In New York State, the penalties for an alcohol or drug-related violation include the loss of driving privileges, fines, and a possible jail term.

Additional penalties

  • greater penalties can also apply for multiple alcohol or drug violations within a 25-year period
  • surcharges are added to alcohol-related misdemeanors ($260) and felonies (generally $400, but varies slightly depending on court of conviction)
  • three or more alcohol or drug-related convictions or refusals within 10 years can result in permanent revocation, with a waiver request permitted after at least 5 years
  • a driver with an Aggravated DWI violation conviction within the prior 10 years will receive a minimum 18-month revocation if convicted of DWI, DWAI/Drugs or DWAI/Combination. Also, a driver with a prior DWI, Aggravated DWI, DWAI/Drugs or DWAI/Combination with the prior 10 years will receive a minimum 18-month revocation
  • a driver convicted of an Aggravated DWI, DWI, DWAI/Drug, DWAI/combination, vehicular assault and aggravated vehicular assault, or vehicular manslaughter and vehicular homicide three or more times in the preceding 15 year period is guilty of a Class D felony.
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Why You Should Choose Us to Help You Defend Your Chemical Test Refusal

First, we have extensive experience navigating the DWI//DWAI by drugs minefield.  Luigi has handled thousands of DWI/DWAI by drug cases including many breath test refusal cases as both a prosecutor and as a defense attorney and is a master negotiator.  He can pick apart most DWI Refusal cases by finding mistakes that the police made during their investigation.  Often, these mistakes mean that  a client does not have to go to trial and instead can receive the benefit of a lower charge which carries less penalties including no jail, lower fines, no probation, no need to install an ignition interlock device in a motor vehicle and a sooner reinstatement of one’s full driving privileges.

Second, not every lawyer who handles DWI Refusal cases is an experienced trial lawyer. Any lawyer can walk into court and plead you guilty.  The reason you hire an experienced DWI/DWAI by Drugs lawyer is because if plea negotiations break down, you want someone who has intimate knowledge of the science of DWIs/DWAIs by Drugs and can successfully go to trial and win.  Trial lawyers are highly specialized in trial advocacy.  Luigi has extensive experience in DWI/DWAI by Drug trials and litigation including breath test refusal cases and has won many cases for his clients.

Lastly, we give personalized attention to each of our clients.  Whenever someone is arrested and charged with a crime, it can be psychologically and emotionally devastating.   

Luigi is in constant contact with his clients and explains the legal process to them and is with you EVERY STEP OF THE WAY.  Many clients refer their family and friends to us because they not only received a great result in their case, but also because Luigi made them feel like they mattered.

If you or a loved one is in trouble, call us 24 hours a day.  We are here to fight for you.

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The Law Offices of Luigi Vigliotti, P.C., serves clients in courts on Long Island, New York City and upstate New York.

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Law Offices of Luigi Vigliotti, P.C., located in Garden City, New York, serves clients throughout Long Island and the surrounding area, including in Nassau County, Suffolk County, Queens County, New York City and Upstate.

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