Michael A. Ferraro, Esq., P.C.
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Can a police officer force you to take a breath test?

| Nov 20, 2020 | DWI defense |

During a traffic stop, police officers will ask you questions and analyze your behavior to try to determine if you have broken the law in some way. Officers may listen to the way that you speak, look at the size of your pupils and movement of your eyes, and even ask you to perform brief physical tasks, like walking and turning or balancing on one leg, in order to determine if you are under the influence of drugs or alcohol.

If they have reason to suspect impairment after a field sobriety test or a conversation with you, they may ask you to perform a chemical breath test. You may feel inclined to say no to such a request. Can the officer force you to perform the test if you don’t want to?

An officer cannot violate your bodily autonomy

During a traffic stop, even one involving suspicions of impaired driving, an officer still has to respect a driver’s civil rights. That means that they cannot force you to give them a physical sample from your body, regardless of whether they want breath or blood.

If you refuse to voluntarily provide a sample, however, they can arrest you on the spot for violation of the state’s implied consent law. New York has a law that makes it a crime to refuse a chemical test when officers have reasonable suspicion of intoxication. You could lose your license for refusing the test and may also still wind up charged with impaired driving, depending on the circumstances.

The officer could potentially seek a warrant

It is worth noting that if you refuse chemical testing during a traffic stop and wind up in police custody, the officer that arrested you might pursue the matter by asking a judge to approve a warrant for a blood draw. While an officer can’t compel you during a traffic stop to perform a chemical test, you do have to comply with a court order or warrant.

If you recently got arrested for impaired driving or for refusing a breath test, you may need criminal defense assistance or help getting back your license. The sooner you act to protect yourself, the more time you’ll have to prepare to defend yourself.