New York Could Become Tougher for Motorists Driving While Impaired

Under New York's "implied consent" law, all drivers are deemed to consent to chemical testing of blood, breath, saliva, or urine if arrested on suspicion of driving while intoxicated by alcohol ("DWI") or while ability impaired by drugs ("DWAID"). However, a chemical test cannot be given if a motorist refuses, unless the police obtain a court ordered warrant, which is available only when there is "reasonable cause" to believe that the motorist caused the death or serious physical injury of another. That could change soon though, as the New York State legislature is considering a bill that would authorize the police to seek a warrant in any instance where a driver is suspected of DWI or DWAID and refuses a chemical test.

Currently, although motorists suspected of DWI or DWAID may refuse to submit to a chemical test, the consequences of refusal are typically significant enough to deter many from taking that route. First, refusal carries Department of Motor Vehicles ("DMV") civil penalties, including 1 year license revocation and a $500 fine. A second refusal carries heightened penalties, and DMV civil penalties stand even if the motorist is later acquitted of the underlying charge. Second, most District Attorney's offices in New York punish motorists who refuse chemical tests by not offering plea bargains. Third, refusal to submit to a test can be used as evidence of guilt at trial.

Given the consequences of a refusal, most motorists agree to take a chemical test. On the other hand, refusal can benefit a motorist who would otherwise be guilty of "aggravated DWI" (blood alcohol content of .18 or higher), or "DWI per se" (blood alcohol content of .08 or higher), both of which require a chemical test for conviction. On the other hand, both "common law" DWI (no chemical test result) and DWAID charges do not require prosecutors to present a chemical test to prove guilt, but the task of convicting drunk and impaired drivers without a chemical test result is harder. This is truer than ever nowadays, as jurors exposed to legal and police dramas such as "CSI" and "Law and Order" often expect scientific or statistical evidence at trial –the so-called "CSI Effect."

The ability of law enforcement to compel chemical tests in cases that do not involve death or serious injury would represent an increase in the State's search and seizure powers under the Fourth Amendment, particularly because certain tests, like blood testing, are highly intrusive.

The United States Supreme Court weighed in on this exact issue in a controversial ruling last term. It held that police cannot compel a DWI suspect to submit to a blood test without a warrant absent exigent circumstances. The Court indicated that compelled tests authorized by a court do not present constitutional infractions, however. So, while New York's law would not present a constitutional issue, it would certainly constitute an expansion of the state's search authority and another good reason for motorists to exercise caution.

By Edward Paltzik, an attorney at the Manhattan-based law firm Joshpe Law Group LLP

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