New York DWI– Your Rights When Asked To Take Breathalyzer

During the course of an arrest for New York DWI, the arresting officer will request that you take a chemical test of your blood, urine, or breath. Most commonly, the request is to take a breathalyzer, which should not be confused with the breath screening test (often an alka-sensor is used at the scene, the results of which are not admissible in Court). When the request is made, many people react based upon what friends or relatives have told them, i.e., always refuse the test (not great advice) try to chew a piece of gum or drink coffee ( absolutely useless), or stall (not going to work).

What most drivers do not know, is that you do have a qualified right, based upon a 1968 Court of Appeals case People v Gursey, to contact an attorney to advise you as to whether to take the chemical test or not. To be clear, because the issuance of a driver’s license is a privilege, and not a constitutional right, there is no absolute right to an attorney, as there would be in a criminal case. Clients often confuse the fact. The DWI case is a criminal case, whereas a failure to take the chemical test results in a Refusal Hearing, which is an administrative proceeding, conducted at the local Department of Motor Vehicles office for that county.

The caveat to your rights under Gursey, is that you may not “substantially interfere with the investigative procedure” while requesting to contact a lawyer. What this means is that if you need to start looking up the name of an attorney while in the course of your DWI arrest, or start frantically calling friends to get the name of a lawyer who may or may not be available when you call (not too likely at 3:00 in the morning), the qualified right to counsel established under People v. Gursey is not likely to help you.

The best advice that I can offer is to have an attorney’s name and phone number saved in your cell phone, so that if you are stopped for a DWI, and a request is made for you to consent to a chemical test, you can quickly contact an attorney that you know you will be able to reach, and receive the advice that you need.


Contact the White Plains DWI Lawyers at The Law Office Of Mark A. Siesel online or toll free at 888-761-7633 if you are charged with a DWI, any criminal offense or a traffic infraction, for a free consultation with an experienced attorney to discuss your legal rights and options.