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Implied Consent in New York

Implied consent is a legal concept that applies to driving under the influence driving while intoxicated (DWI) cases. Under this doctrine, any person who operates a motor vehicle on a public roadway in New York is deemed to have given implied consent to chemical testing to determine their blood alcohol concentration (BAC) level. If you refuse to submit to chemical testing, your driver's license can be suspended or revoked, and you can face additional penalties. It is important to understand the implications of implied consent and the associated laws in New York, particularly if you are facing DWI charges. To learn about implied consent, contact an experienced New York DWI lawyer at Stephen Bilkis & Associates.

Implied Consent Statute

Under NY Veh & Traf L § 1194, any person who operates a motor vehicle on a public roadway is deemed to have given their consent to a chemical test for the purpose of determining their BAC level if they are lawfully arrested by a police officer who has reasonable grounds to believe that the person was driving while under the influence of alcohol or drugs. The chemical test can be in the form of a breath, blood, urine, or saliva test, and it must be administered within two hours of the arrest.

Implied Consent Warning

The implied consent warning is a statement read to drivers suspected of driving under the influence of alcohol or drugs in New York State. It informs drivers that by operating a motor vehicle in the state, they have already given their consent to take a breathalyzer or other chemical test to determine their BAC if they are suspected of DWI. The warning also informs drivers that if they refuse to take the test, their driver's license will be immediately suspended and they will face penalties under the law. The general purpose of the warning is to inform drivers of their rights and obligations under the state's DWI laws, and to encourage them to comply with testing procedures in order to deter drunk driving and ensure public safety.

Consequences of Refusal

It is important to note that drivers have the right to refuse a breathalyzer test or any other type of chemical test. You will not be forced to take any type of chemical test. However, if you refuse, there will be serious consequences. It is recommended that anyone facing a DWI charge or an implied consent suspension immediately seek the advice of an experienced New York DWI lawyer. Keep in mind that there is a short window for complying and taking a chemical test.

Administrative Consequences. When a driver refuses to take a breathalyzer test, the Department of Motor Vehicles (DMV) will automatically suspend the driver's license for at least one year. The suspension period can be longer depending on the driver's prior record of DWI convictions or refusals. If the driver had a previous DWI conviction or refusal within the last five years, the suspension can be as long as 18 months. Additionally, the driver may be required to install an ignition interlock device in their vehicle after the suspension period ends.

Criminal Consequences. In addition to the administrative consequences, a chemical test can impact your case if you face criminal charges for DWI. Prosecutors can use the refusal as evidence of guilt in a DWI trial, as it may be seen as an admission of guilt. Refusing to take a breathalyzer test can also result in harsher penalties if the driver is convicted of DWI. The prosecutor can argue that the refusal shows a conscious effort to hide or conceal the level of intoxication, which can lead to increased fines, longer jail sentences, and more severe license suspensions.

DWI cases are complicated. It is critical to consult with an experienced DWI attorney in New York as early in the process as possible.


People v. Strauser, 2017 N.Y. Slip Op. 50885 (N.Y. City Ct. 2017). This case involves the defendant, Jeremy Strauser, who was arrested and charged with driving while intoxicated DWI and refusing to submit to a breathalyzer test in violation of New York’s implied consent law.

The defendant was pulled over by a police officer for failing to signal a turn. The officer noticed that the defendant had bloodshot eyes and smelled of alcohol. The defendant admitted to consuming three beers and agreed to perform field sobriety tests. After performing poorly on the tests, the defendant was arrested and taken to the police station. At the station, the defendant was read the New York State’s implied consent warnings, which informed him that refusal to submit to a breathalyzer test could result in the suspension or revocation of his driver’s license. Despite being advised of the consequences, the defendant refused to take the breathalyzer test.

The court held that the prosecution had established probable cause for the arrest and that the defendant had been properly advised of the consequences of refusing to submit to a breathalyzer test. The court found the defendant guilty of DWI based on the officer’s observations of the defendant’s appearance and behavior and the results of the field sobriety tests. The court also found the defendant guilty of violating New York’s implied consent law for refusing to submit to the breathalyzer test.

The case of People v. Strauser serves as an example of how New York’s implied consent law can impact the outcome of a DWI case. Drivers in New York should be aware that they can face consequences for refusing to submit to a breathalyzer test when suspected of DWI, even if they are not ultimately convicted of DWI. Anyone facing DWI charges or related charges in New York should seek the advice of an experienced DWI attorney in New York who can help them understand their rights and options under the law.

Contact Stephen Bilkis & Associates

Your decision as to whether to take a chemical test will have negative consequences. It’s important to understand those consequences. If you are facing a charge related to a DWI, contact in experience DWI attorney serving New York at Stephen Bilkis & Associates as early in the case as possible. We have the experienced and skill to help ensure the best possible outcome given the specific facts of your case. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in Manhattan, Nassau County, Queens, Bronx, Brooklyn, Long Island, Staten Island, Suffolk County, Westchester County, and Suffolk County.