June 19, 2014
Most people don’t realize that by just hopping into the car to run to the store or drive to work they have actually made an agreement with the state of New York (other than to not drive like an a**hole…an agreement violated with far too much frequency, btw). By getting behind the wheel, you as the driver have agreed to consent to a chemical test in the event you are stopped by a police officer who might suspect that you are driving while intoxicated or impaired. This is the law of “implied consent,” and specifically states that:
Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at the direction of a police officer:
(1) Having reasonable grounds to believe such person to have been operating in violation of any subdivision of [VTL 1192] of this article and within two hours after such person has been placed under arrest for any such violation.
NY Vehicle and Traffic Law Sec. 1194(2)(a).
What exactly does this mean? It means that if you refuse to provide that sample when legally requested, you could be subjected to civil penalties and sanctions (see my previous entry re: chemical test refusals). It also means that in the event you are unconscious (after an accident or perhaps some sudden onset of a medical emergency), the police can just take your blood without a peep from you or anyone else! Why? Because you’ve given that implied consent by driving in New York in the first place!
Now that doesn’t mean the police can just drive around with a needle at the ready and jam it into anyone’s arm who they might find in the unfortunate state of unconsciousness behind the wheel. In order for the implied consent law to come into play, the officer must have “reasonable ground” (i.e., probable cause) to believe that you have been operating in violation of VTL 1192, that is, driving drunk, drugged or impaired. The test must also be administered within two hours of the time of arrest. If either of those requirements is not satisfied, a competent DWI defense attorney (appearing before a reasonable judge) should be able to have the results of the blood test suppressed.
Note that taking a sample for a chemical test pursuant to implied consent is different than a compulsory blood test (a topic for the next article!).
If you have been arrested and charged with DWI, contact the experienced, knowledgeable and proven DWI defense attorneys at Catalano & Carpenter LLP for a free consultation today at (845) 454-1919 or through our website at www.toddcarpenterlaw.com.