Although Vehicle and Traffic Law 1192.2 in New York states a blood alcohol content (BAC) reading of at least 0.08% is per se proof of intoxication, VTL 1192.3 doens't have the same standard. In most cases, an individual will be charged under a VTL 1192.2 and a VTL 1192.3 at the same time, but an individual may only be charged with a VTL 1192.3 misdemeanor for refusal to take a DWI test. When an individual is taken to a law enforcement agency after a suspected DWI, he or she may be asked to submit a breath test with an intoxilyzer. However, an individual has the right at any time to ask a law enforcement officer to contact his or her attorney. If an individual refuses to submit this test, it will result in the automatic revocation of his or her driver's license. It is important to note that a police officer must properly inform an individual of his or her rights and instructions before taking the test. When an individual fails to submit a breath test, his or her license will be suspended pending a refusal hearing at the Department of Motor Vehicles (DMV). The basis of this offense is the observation of the police official and legal presumptions. Police officers will usually indicate an individual wasn't steady on his or her feet, had blood shot eyes, and showed other characteristics to being intoxicated. Furthermore, the officer must prove an individual was operating a motor vehicle. Many times, refusal to submit a breath test charges will rely on police video and documentation from the officer. When there is inconsistency in the paperwork or video, which may show an individual was speaking clearly and standing upright, there is a chance the accused can beat the case. Although each case is different, the documentation and video are critical pieces of evidence. Those convicted of VTL 1192.3 could face the following penalties:

• Community service
• A fine between $500 to $1,000
• Up to one year in jail
• License suspension for six months (Common Law)
• One year revocation (Refusal)
• Impaired Driver Program (IDP)
• Vehicle interlock device

What is a Conditional License? Those who have their license suspended may be able to apply for a conditional license. If an individual enrolls in an Impaired Driver Program (IDP), which can be done at a DMV office, he or she may also apply for a conditional license. A conditional license allows individuals to operate a motor vehicle under certain circumstances. For example, an individual is allowed to travel to and from work to maintain his or her job. Those in New York with a conditional license may also drive to and from medical examinations and activities or classes that are part of an IDP. However, it is important to note not all who apply for a conditional license will be granted this privilege. Defenses for Refusal to Take a Breath Test Those facing a refusal to submit charge should contact an experienced DWI attorney immediately. Although blood alcohol tests are designed to provide accurate results, there are many instances were mistakes are made that produce false readings. Furthermore, there are medical conditions that can prevent an indiviudal from submitting an accurate sample. A Medical Condition That Inhibits an Individual's Ability to Submit a Breath Sample A breath testing device requires that an individual blow into the device for a reading, and not all individuals have the lung capacity to adequately blow into this device properly. For these devices to work, there must be a certain amount of deep lung air for a valid reading. If an individual is not able to provide enough deep lung air, the blood alcohol results may be inaccurate. The Police Officer Didn't Follow the Rules A police officer must adhere to a specific procedure if requesting an individual take a blood, breath, or urine test. It is also mandatory that the police officer advise the individual, which must be in unequivocal and clear language, the consequences if the individual fails to take the test. Furthermore, when the officer failed to inform the individual that his or her license may be suspended or revoked for refusal to submit a sample, it can be used in court. The defendant could argue that he or she wasn't given enough information to make an educated decision about taking the test. The Police Officer Didn't Allow an Individual to Call His or Her Attorney In these circumstances, one of the biggest mistakes a police officer can make is not allowing an individual his or her right to contact an attorney. In New York, the law states when a motorist is under arrest for a DWI, he or she has the right to speak to an attorney before making the decision to take a breath test as long as the test is not unduly delayed, which is why it is vital to seek legal counsel before submitting a breath test.