New York DWI–Breath Screening Test Not A Chemical Test

We represent many clients who are charged with driving while intoxicated and a refusal to take a chemical test. Many of these clients were charged with a refusal since they did not understand the difference between 1) what is known as a “Breath Screening Test” (BST), which is used at the scene of an arrest, and is often called an “Alco Sensor”, and 2) the breathalyzer test or other chemical test which the arresting officer requests that the client undergo once they have been placed under arrest and taken to the precinct.

Simply put, the breath screening test is an unscientific test which the officer requests that the client take in order to have probable cause to make the DWI arrest. However, this test, since it is not scientific, is not admissible in Court. Thus, the arresting officer will request that the client take a breathalyzer, or other chemical test of blood, urine or saliva, at the precinct, which is admissible in Court and forms the evidentiary basis for proving a DWI case in Court. Of course, the officer never explains the distinction between the non admissible BST that the client took at the scene, as opposed to the scientific and admissible Breathalyzer which the client is requested to take at the precinct.

Inevitably, and to the client’s dismay and surprise, when the client responds to the request: “Will you agree to take a chemical test of your breath at this time?” with an “I already took the breathalyzer earlier”, the officer never explains the distinction between the tests–and thereafter, when the client does not take the breathalyzer thinking they have already done so, they are charged with a refusal.

The Refusal to take a chemical test is not a crime as is a DWI or Aggravated DWI, but it carries with it enormous implications for the client’s driving privileges, fines, and ability to resolve the criminal case. If found guilty of a refusal to take a chemical test at the Administrative hearing before a Department of Motor Vehicles judge, there is an automatic one year revocation of the client’s license, fines which are generally at least $1,000.00, and the client is now not eligible for a “20 day stay” at the end of the DWI case in order to more quickly get their “conditional license” which allows them to drive to and from work, doctor’s appointments, to pick up children from day care or for emergencies.


If you, a friend, or loved one has been charged with a New York DWI, felony DWI, a refusal to take a chemical test, or any other crime, contact the Westchester County Criminal Defense Lawyers at The Law Office Of Mark A. Siesel online or toll free at 888-761-7633 for a free consultation with an experienced defense attorney to discuss your legal rights and options.

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