The Refusal statutes are based on the presumption that anyone who drives within NY or NJ is deemed to have given consent to a chemical test in order to determine the alcohol or drug content in the driver’s blood. In other words, when a person decides to drive a vehicle in either NY or NJ, that person is deemed to have simultaneously agreed to provide a chemical test sample when asked to do so by an officer. Unfortunately, a suspect cannot “plead the Fifth” because the Constitutional Right against Self-Incrimination offers no protection for drivers in this situation. The privilege is only a bar against compelling verbal communications or testimony and does not protect against the compulsion of real or physical evidence[i], such as a breath, urine or blood sample.
Once a driver has been charged with Refusal DWI, the burden is on the prosecutor to prove two crucial facts in order to convict a suspect. The prosecutor must demonstrate beyond a reasonable doubt that (a) that the police officer had probable cause to believe the suspect was driving a vehicle while intoxicated and (b) that the suspect refused to take the chemical test. If a police officer lacked a proper basis to ask a driver to submit to a chemical breath test or the prosecutor cannot demonstrate that the suspect actually and knowingly refused, then the Refusal charge will be dismissed.
If you, or someone you know has been arrested for Refusal DWI, contact a defense attorney today to learn about your rights and how to best defend against the charges going forward. Contact us today to set up a free consultation.
[i] Schmerber v. Cal., 384 U.S. 757, 764 (1966).