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Sep 16, 2009 12:44 PMPublication: The Southampton Press

Refusal of breath test could make prosecution more difficult

Sep 16, 2009 12:44 PM

All drivers who refuse to take a breath test when they are pulled over on suspicion of driving while intoxicated—as was the case with Southampton Town Supervisor Linda Kabot when she was pulled over in Westhampton Beach on Labor Day—automatically lose their license for a year.

The refusal is actually a separate infraction from a misdemeanor DWI charge, explained Daniel Rodgers, a lawyer who specializes in representing those charged with DWI and who has offices in Southampton and Riverhead.

“Even if you get the charges dismissed for the DWI, you can still lose your license for a year,” he said. “The person will not even qualify for a conditional license.”

Still, the primary benefit of declining a breath test, according to local attorneys, is that the refusal usually makes it more difficult for the district attorney’s office to prosecute a person for DWI. In addition to proving that a driver was intoxicated, prosecutors now also have to prove that a person had a blood alcohol level of 0.08 percent—the legal limit in New York State—or higher without documented evidence.

In Ms. Kabot’s case, prosecutors with the Suffolk County district attorney’s office will most likely have to rely on a pair sobriety tests conducted by Westhampton Beach Village Police, which police said she failed, to make their case against the town supervisor. In addition to refusing the breath test, Ms. Kabot said she declined to submit to a chemical test after she was taken to police headquarters following her arrest.

Ms. Kabot’s attorney, John O’Brien, declined to speculate this week on what his client’s defense would be in the DWI case.

Sobriety tests are designed to build a case against a suspected intoxicated driver, Mr. Rodgers said, noting that it is usually not difficult to prosecute drivers if they could not walk a straight line, were slurring their speech, or if police noticed other signs of drunkenness, such as glassy, red eyes and an odor of alcohol at the time of an arrest.

Arresting officers are trained to differentiate between drivers who might have had a cocktail or two and those who are beyond the legal limit, according to attorneys. Some people refuse a breath test because they are scared and they freeze, Mr. Rodgers said. Others know that they have had too much to drink and believe that they would fail the test, he said.

“It’s not illegal to have a couple of drinks and drive,” Mr. Rodgers said. “It’s illegal to get drunk and drive. It’s illegal to drive under the influence.”

Those convicted of DWI could face up to a year in jail, lose their license for six months, receive three years’ probation, or face fines ranging from $500 to $1,000. In Ms. Kabot’s case, her refusal to submit to a breath test resulted in her license being automatically suspended for a year.

A person who refuses a breath test in Suffolk County must attend a hearing within two weeks of his or her arrest, usually at the New York State Department of Motor Vehicles office in Hauppauge. At that hearing, only one issue will be discussed: whether the police officer warned the individual of the repercussions of not taking a breath test, Mr. Rodgers said.

Those DMV hearings hardly ever go in favor of the defendant, noted Fred Fisher, another lawyer whose expertise is DWI cases.

“They are almost impossible to win,” said Mr. Fisher, whose office is in Southampton.

A potential loophole is if the arresting officer does not show up for the hearing. In some cases, drivers will get their licenses back until another hearing can be scheduled about a month later. The defendant still risks losing his or her license during the second hearing.

On Monday, Ms. Kabot and her attorney attended such a hearing in Hauppauge and, as expected, Ms. Kabot’s driver’s license was automatically suspended for one year. The arresting Westhampton Beach Police officer, Ryan Lucas, attended the hearing. The suspension is actually retroactive to the date of her arrest, so Ms. Kabot will not have driving privileges again until September 7, 2010, according to her attorney.

Even though submitting to a breath test will give prosecutors more evidence against a person, Mr. Rodgers does not think it is a wise move to refuse to take such a test, noting that the penalties are severe.

“Every case is different,” he said. “If your license is important to you, it’s usually not a good idea to refuse [to take the breath test].”

Mr. Fisher said there is no right or wrong answer regarding whether or not it is smart to refuse a breath test. Still, he said he would advise a client who had consumed more than one eight-ounce beer or one mixed drink to politely refuse a breath test.

Both Mr. Fisher and Mr. Rodgers agree that drivers who have consumed less than one drink, or those who know that they are sober, should always submit to a breath test.

“I don’t know why someone would [refuse] if they were sober,” Mr. Rodgers said.

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“It’s not illegal to have a couple of drinks and drive,” Mr. Rodgers said. “It’s illegal to get drunk and drive. It’s illegal to drive under the influence.”

Oh really ? In NYS you can be arrested for DUI if the officer suspects you've had just ONE beer and its affecting your ability to drive.
By PrivateerMatt (390), Weesuck Creek , EQ on Sep 16, 09 4:49 PM
Chances are the officer is going to suspect you have had more than one. Are you saying that if someone tells an officer they have had one beer, the officer should believe them and let them go? I think the cops have to check you out if you say you have had ANYTHING to drink.
By Ebby (75), Sag Harbor on Sep 16, 09 6:27 PM
You only refuse when you know you will not pass. Most people who have friends or relatives who are attorneys are are told not to take the breath test, you lose your license for 1 year and more difficult to prove DUI.
Linda has shown poor judgement and we all have to rethink our suport for her. Deception on a personal level over flows to the profressional level.
By kpjc (161), east quogue on Sep 21, 09 7:04 PM
well, if i'm ever drunk while driving, i'm going to follow Kabot's example and refuse the test. What a role-model she is!
By nicole (96), Hampton Bays on Sep 23, 09 2:25 PM
If you had one drink you can be arrested for DUI . what are you talking about Mr. Rodgers .you know better than that. if i blow a .05 could i be arrested for dwi? or better yet if the cop thinks i am impared can he arrest me on his own judgement? linda did the right thing, it is her right to refuse
By banjack (45), port jeff on Sep 24, 09 9:57 AM