You could be asked to take a test even before you have been arrested. If you have been involved in an accident, then an officer can ask you to take a breath test. If the results show that your BAC is above the legal limit (.08%), then the officer will ask you to take an additional chemical test. It will not work in your favor to refuse the preliminary breath test. If the officer has any other reason to believe that you have been driving while intoxicated, then he or she can still arrest you and ask you to take a chemical test, which you cannot refuse without penalty.

You can read New York’s implied consent law in the New York Vehicle and Traffic Law 1194.

Refusing to Take the Test

1st Offense 2d offense 3rd Offense Refusal to take test 1 year license suspension 18 month license suspension 18 month license suspension Once you are arrested, or after you have taken a preliminary breath test, the officer should tell you that you will lose your license if you refuse to take a test. Although New York law does not require the officer to tell you, you will also have to pay a fine for refusing a test. For your first refusal, your license will be suspended for one year and you will owe the state $500. For your second and any subsequent refusal, or if this is your first refusal but you also have been convicted of a DWI within the last five years, your license will be suspended for 18 months and the fine is for $750.

In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, if the incident that caused you to be arrested also caused injury or death to another person, and you refuse to take a test, then an officer can get a court order that requires you to take a blood test. If you think it might buy you time to refuse a test in this situation, think again. It’s relatively easy for a police officer to get a court order. The officer needs only to get a judge on the phone and swear that he or she has a good reason for the order.

The penalties for refusing to submit to a chemical test are found in the New York Vehicle and Traffic Law 1194.

So basically she can dodge the criminal penalty of DWI, but the cival penalty for test refusal is issued automatically by the DOT. Also having a test refusal alcohol related on your criminal record is equally as damaging as having an actual DWI.

The penalties get progressively more expensive and last longer for any given incident.