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"Out Out Damn Spot!"
Some of the DWI and DWAI drug cases I handle don't involve the taking of a breath sample to check for alcohol (and/or drugs) but of blood. I guess the first question some people ask is "do I have to give my blood?"
In other words, "do I have to consent?" In an accident with injuries in New York State the Police can demand a blood sample but in many other situations it is your choice. Just like you can refuse a breath test, you can also refuse a blood test.
You have a legal right to say NO! Just like they can not invade your home, they (the government) can not invade your body without your permission. Now refusing has consequences, they will involve a civil fine, a hearing to revoke your license, and a longer period of time with NO license.
The worst part of any Refusal DWI case is the loss of complete license privileges. This may not be a big deal for city dwellers but for those that live and work in the country (around these parts it's all country) it is a real hardship. For those that need a license to drive "for" their jobs it can mean termination of employment.
Second Issue is that the Court can not suspend your license without a BAC result of .08 or more. In fact the police can not even charge you with the "Per Se" DWI (for blood or breath) without a test result. You will only be charged at the outset with Common Law DWI (VTL 1192 (3)).
Blood tests take time to process, sometimes 4 to 6 weeks. So your attorney should not allow them (the Court) to suspend your driving privileges prematurely. They need to have a certified test result to do that. Although the Judge could use a catch all suspension statute (if he thinks you are a danger to yourself or others). In all my years of practice I have only seen this happen once.
Blood testing is not perfect either. The taking of blood usually involves civilians (not the police), and they do not always follow proper protocols and procedures (which are numerous and specific). Sometimes a blood case is easier to defend than a breath case depending on the circumstances.
Well enough about blood for one blog.
When Do the Police want Your Blood instead of Your Breath?
Always consult with an attorney about any criminal or
non-criminal charges you have pending to discuss your options and/or defenses.
Originally, born and raised in Brooklyn, NY. My father was a
NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY
with my wife (of 25 years), and four kids. I have a B.S. in Human Biology,
Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I
practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated
law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love
practicing criminal defense and injury law within the Finger Lakes Region of
New York State.
Over 90% of the cases that I take on are New York DWI
defense cases. I am certified as a breath tester by the Department of
Transportation, the guidelines of the International Association of Chiefs of
Police (IACP), and the National Highway Traffic Safety Administration (NHTSA).
I am certified in Field Sobriety Tests, and an active member of the National
College of DUI Defense (NCDD). My online materials include over 450 blog posts,
dozens of articles, and over 440 informative videos on my youtube channel.
I have co-authored Strategies for Defending DWI Cases in New
York, in both 2011 and 2013. These are West Thomson legal manuals on New York
State DWI defense, and focus on the best practices for other lawyers handling a
New York DWI case. Included in Strategies for Defending DWI Cases in New York
are materials I provide clients, such as my fee agreement and ways to avoid
misdemeanor probation. I was selected by Super Lawyers as a Upstate New York
2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and
professional standing.
newman.lawrence@gmail.com
607-229-5184
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