What Are the Consequences of Refusing a Chemical Test for DWI?

If you are stopped on a New York roadway and suspected of drunk driving, you may be asked to take a preliminary breath test (PBT). This test, administered using a handheld device, is used to help the officer decide if there is probable cause to make an arrest. There are no penalties for refusing this test, but police may still arrest you based on other observations, such as erratic driving, slurred speech, alcoholic odor or lack of balance. If so, you will be asked to submit to a chemical test at a police station. Unlike a PBT, a chemical test cannot be refused without serious consequences.

By operating a motor vehicle in New York, you are deemed to have impliedly given consent to chemical testing if a police officer has probable cause to suspect that you are driving while intoxicated (DWI). Testing is conducted using breath, blood, urine or saliva. Prior to testing, you have to be given a mandatory warning about the consequences of refusal.

If you refuse to participate in chemical testing, your driver’s license will automatically be suspended. The New York Department of Motor Vehicles (DMV) will then schedule a hearing. If the DMV determines that your refusal was knowing and voluntary, your license will be revoked for at least one year. If you have prior alcohol-related incidents, the revocation period can be significantly longer. Civil penalties start at $500 and can increase under certain circumstances. This is in addition to any separate fines or costs associated with the DWI criminal case. 

Refusal of chemical testing does not necessarily keep the DWI criminal case from going to court. Prosecutors can still pursue a conviction based on other evidence, including the arresting officer’s observations. In fact, your refusal to participate in chemical testing can be used to show “consciousness of guilt.” The evidence can suggest to the judge or jury that you only declined testing because you knew that your results would ensure a conviction. That can be powerful and persuasive evidence.

At the same time, however, refusal does keep the most direct form of evidence of DWI out of the prosecutor’s hands. Without chemical test results, the state cannot establish a specific level of intoxication. The circumstantial evidence of your guilt, including the arresting officer’s testimony, can be open to challenges by a skilled DWI defense attorney.

Other defenses may be available. If the traffic stop was not supported by reasonable suspicion or if the probable cause used to make the arrest was weak, key evidence against you may be suppressed in court. Issues surrounding how the mandatory refusal warning was issued and whether refusal was truly knowing and voluntary can also be part of your defense. 

Refusing a chemical test after a DWI arrest is not an easy or simple way to avoid conviction. It is a decision that has to be weighed carefully, since refusal creates its own legal and administrative issues while still leaving the potential for conviction. If you are facing charges related to chemical testing refusal and a DWI, early legal intervention is the best way to mitigate the potential fallout. 

The Law Offices of Maurice Verrillo, P.C. in Rochester provides aggressive defense for Western New York residents in DWI cases. Call our office at 585-563-1134 or contact us online for a free initial consultation.

By Maurice J. Verrillo | Published May 28, 2026 | Posted in DUI/DWI | Tagged breath test, consent, DWI | Comments Off on What Are the Consequences of Refusing a Chemical Test for DWI?