Implied Consent Law in New York

Every state in the United States has enacted the Implied Consent Law. Here’s what you need to know about New York’s Implied Consent Law.

The New York Implied Consent Law states any individual lawfully investigated for driving while intoxicated (DWI) provides consent to take a chemical test for blood-alcohol content (BAC) determination. In other words, operating a motor vehicle in the state of New York means automatic consent to a post-arrest chemical test.

What are Implied Consent Laws?

Under “Implied Consent” laws in all states, all motorists applying for a driver’s license automatically consent to field sobriety tests and chemical tests to determine sobriety. In addition, New York’s Implied Consent Laws make drivers take preliminary breath tests when probable cause for drunk driving exists. Consequences of breathalyzer refusal vary by state, but for New York, it is an automatic 6-month license suspension plus a maximum $500 fine.

Preliminary Tests vs. Chemical Tests

The police administer preliminary breath tests even before arresting a driver. If the test shows a BAC of above .08, the police may ask a motorist to take additional chemical tests. If a motorist is involved in an accident and the officer has reason to believe they were driving while intoxicated, refusing a preliminary breath test is ineffective and will result in severe legal repercussions. The officer can still arrest the driver and ultimately initiate a chemical test.

Related: New York Consent Laws: Updated 2022

The type of chemical test administered is dependent on the officer. In New York, this may either constitute a blood, breath, urine, or saliva test. The motorist must take the test within 2 hours of operating a vehicle. Motorists have the right to request a medical professional of their choice to perform additional tests, but only after compliance with the officer’s test.

FAQs About New York’s Implied Consent Law

What are the Penalties for Refusing to Take Chemical Tests in New York?

Motorists can refuse to take chemical tests, but refusal comes with penalties. These penalties are separate from the actual drunk driving charges. Though, the officer must warn the motorist of the consequences of refusing a chemical test before suspending their driver’s license. If the motorist refuses to take the chemical test after being warned, the prosecution can use this refusal against them as evidence of a “guilty conscience.” The strategy means the motorist chose not to comply with the chemical test because he or she knew the result would provide evidence of guilt.

1st Refusal: Driver’s license suspension for up to one year and a maximum $500 fine
1st Refusal for Underage Drivers (Under 21): Driver’s license suspension for up to one year and a maximum $125 fine
2nd Refusal or DWI conviction within five years: Driver’s license suspension for up to 18 months and a maximum $750 fine
3rd Refusal or two DWI convictions within four years: Permanent Revocation of driver’s license

Does the Implied Consent Law apply to all drivers in New York?

The Implied Consent Law applies to any person who operates a motor vehicle within the state of New York. The law applies to New York residents with New York state licenses and non-New York residents holding out-of-state licenses.

Related: What Consent Looks Like: Guide to Consent

Is the BAC level the only factor New York uses to determine convictions for driving while intoxicated?

New York’s “per se” drunk driving law means any motorist whose BAC meets or exceeds .08 is legally intoxicated and can be convicted of driving, regardless of other circumstances. However, other factors––such as high BAC level, driving impaired with a child, or causing an accident––can escalate impaired driving to a more serious offense.

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