US-New York

Can I refuse a breathalyzer test during a traffic stop in New York?

1 year
License suspension for 1st refusal
$500
Fine for 1st refusal
2 years
License revocation for 2nd refusal
Implied consent
Legal basis
The Short Answer

No, you cannot legally refuse a breathalyzer test during a traffic stop in New York without serious consequences — refusal triggers automatic license suspension and may be used as evidence of guilt.

What the Law Says

New York operates under an 'implied consent' law: by driving on state roads, you automatically agree to chemical testing if lawfully arrested for DWI.

If a police officer has reasonable cause to believe you are driving while intoxicated, they may request a breath, blood, or urine test. Refusing that test — even if you believe you’re sober — carries automatic administrative penalties separate from any criminal DWI charge.

The penalties escalate with each refusal and apply regardless of whether you’re ultimately convicted of DWI. Refusal is also admissible in court as evidence of consciousness of guilt.

Statutory Text

Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent to a chemical test...

— Vehicle and Traffic Law § 1194(2)(a) — Implied consent
Statutory Text

Upon receipt of a report of refusal... the department shall suspend the license... for at least one year.

— Vehicle and Traffic Law § 1194(2)(f) — Suspension for refusal
Statutory Text

Evidence of refusal... is admissible in any criminal action... as tending to prove the defendant's consciousness of guilt.

— Vehicle and Traffic Law § 1194(2)(g) — Admissibility of refusal

What Courts Have Said

New York courts consistently uphold the constitutionality of implied consent and the use of refusal as evidence.

People v. Arroyo
Court of Appeals of New York · 2018

Held that VTL § 1194(2)(g) does not violate due process; refusal is relevant and admissible to show guilt.

People v. Smith
Appellate Division, Second Department · 2020

Affirmed that officers need only reasonable cause—not probable cause—to request a breath test under implied consent.

What to Do

1

Remain calm and polite during the traffic stop — do not argue or physically resist.

2

You may ask to speak with an attorney before submitting to a breath test, but New York does not require police to grant that request before administering the test.

3

If you refuse, expect immediate license suspension paperwork (DS-248 form) and a hearing scheduled by the DMV within days.

4

Request a DMV hearing within 15 days to challenge the suspension — failure to do so waives your right to contest it.

5

Consult a DWI defense attorney immediately, especially if facing criminal charges or prior refusals.

Sources

statuteVehicle and Traffic Law § 1194(2)(a) — Implied consentstatuteVehicle and Traffic Law § 1194(2)(f) — Suspension for refusalstatuteVehicle and Traffic Law § 1194(2)(g) — Admissibility of refusalcasePeople v. Arroyo, 31 N.Y.3d 107 (2018)casePeople v. Smith, 182 A.D.3d 762 (2d Dept. 2020)

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Not legal advice. This article is general information based on publicly available sources, written for educational purposes. Laws change and individual situations vary. Consult a licensed attorney in your jurisdiction before acting on anything you read here. Last reviewed: 2026-06-08.