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| Requesting a Test After Two Hours of Arrest |
One of the most damning things New York has is the jury instruction on breath test refusals. It allows the judge to tell the jury they can INFER a consciousness of the defendant's guilt (of DWI) if they refused to take a chemical test of blood or breath. Coming from a judge as an instruction on the law is a horrible hurdle on refusal DWIs. In the recent DWI case, the police waited till after two hours to request a test.
That doesn't make a chemical test of blood or breath inadmissible at trial BUT the refusal ...
