THE LEGAL CORNER: Advice on Drinking and Driving

By Nick Pelosino Jr.

So you decide to drive home after a few drinks. All of a sudden, panic strikes when blue and red lights appear in your rearview mirror.

Getting pulled over is a scary ordeal even if you haven’t had a sip of alcohol. And if you have, a big decision awaits you: whether or not to take a breathalyzer.

As a lawyer with 26 years of experience in defending client’s charged with alcohol related offenses throughout Niagara and Erie County, I get this question almost every time I am at a party or event where I am in conversation with friends or acquaintances.

The answer whether to submit to a breathalyzer test is somewhat complicated and like many complicated answers, it depends on the particular circumstances. It is also an answer which clients often attempt to figure out in the middle of the night.

Before answering the question, let’s talk about the penalties which are imposed as a result of your refusal to take a “breathalyzer test” or what is more accurately referred to as the “chemical test”.

Technically, you can refuse to submit to a chemical test in New York State. However, if you do, be prepared to suffer the possible consequences. In New York, there are two primary consequences of refusing to submit to a chemical test. First, the refusal generally can be used against you should you proceed to trial as “consciousness of guilt” evidence. Second, the refusal is itself a civil violation which is wholly independent of the Driving While Intoxicated (DWI) charge in criminal Court and results in proceedings before a DMV Administrative Law Judge to determine whether a civil penalty should be imposed. Generally, these types of hearings result in both (a) a significant driver’s license revocation, and (b) a civil penalty (i.e., a fine).

The civil sanctions for refusing to submit to a chemical test as a first offense are:

  1. 1. Revocation of your driver’s license for 1 year (18 months if you have a Commercial Driver’s License (CDL));
  2. 2. A civil penalty of $500; and
  3. 3. A driver responsibility assessment of $250 a year for 3 years.

Whether to refuse to submit to a chemical test will depend upon a number of concerns: whether you have been involved in a motor vehicle accident involving serious physical injury or death; whether you have had prior convictions for any type of alcohol related offenses; whether you are being charged with a felony DWI; whether you had any children in your vehicle at the time your vehicle was stopped and finally, whether you have had a lot to drink that evening!

If you can answer yes to any of the foregoing questions, you may want to politely refuse all testing, even the field sobriety tests (i.e. roadside testing).

However, if you have only had a few drinks that evening and you are in reasonable control of your actions, you may want to submit to the testing. Again, the answer is substantially more complicated than this, and requires the advice of counsel on a case-by-case basis.

However, the best answer is always not to drink and drive. If you do plan on drinking, always plan a safe way home before the fun begins. If you are impaired, call a taxi, ask a sober friend or a family member for a ride, or use public transportation so you are sure to get home safely. If you know someone who is about to drive while impaired, take their keys and help them make other arrangements to safely get to where they are going. There’s always another way home.

You owe it to your friends, family and the community at large to operate your vehicle in a safe and responsible manner.


Written by attorney, Nicholas A. Pelosino, Jr., Esq.

serving our community for over 26 years


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