Can a lawyer advise a client to refuse a police breathalyzer test?

Plain-English summary

The committee considered whether a lawyer may advise a client to refuse a police officer's request to submit to a breathalyzer test for driving under the influence. It reviewed New York's Vehicle and Traffic Law (then sections 1192, 1193-a, and 1194), under which a driver is deemed to consent to chemical testing on reasonable grounds, and a refusal can result in suspension or revocation of the license if the driver understood the consequences and can be offered as evidence of consciousness of guilt (citing People v. Thomas and People v. Haitz).

The committee emphasized the point critical to the inquiry: under New York law a refusal to submit to a breathalyzer is not itself criminal conduct. A refusal invokes no criminal sanctions, and revocation of the license is a civil sanction (citing Minnick v. Melton). It then measured the advice against Canon 7's directive that a lawyer represent a client zealously within the bounds of the law and against DR 7-102(A)(7), which bars counseling or assisting conduct the lawyer knows to be illegal or fraudulent.

Because a refusal is neither illegal nor fraudulent, and a client willing to risk license revocation acts well within the law, the committee found that a lawyer who recommends refusal cannot be deemed to violate any ethical standard. Consistent with EC 7-8's direction that the lawyer help the client decide on a fully informed basis, the committee noted circumstances where refusal may be the more sensible choice, for example a client with a prior conviction for whom a second offense could be a felony, who might prefer to risk license loss over supplying test evidence. The question was answered in the affirmative.

Currency note

This opinion was issued in 1980, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the scope of advice and the bar on assisting crime or fraud now appear at Rule 1.2, and the lawyer's role as adviser at Rule 2.1). The Vehicle and Traffic Law provisions discussed here have been amended and renumbered since 1980. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer tell a client to refuse a breathalyzer?

A: Yes. The committee held that advising refusal is permissible, because refusal is not itself criminal and the license revocation is a civil consequence, so the advice does not counsel illegal conduct.

Q: Doesn't DR 7-102(A)(7) bar advising conduct against the client's interest or the law?

A: It bars counseling conduct the lawyer knows to be illegal or fraudulent. The committee found refusing the test is neither, so the advice falls outside that prohibition.

Q: When might refusal be the better course?

A: The committee noted, as an example, that a client with a prior DWI conviction, for whom a second offense could be a felony, might reasonably prefer to risk losing the license over providing test evidence.

Background and rules framework

The opinion applied Canon 7 (zealous representation within the bounds of the law) and DR 7-102(A)(7) (not counseling or assisting illegal or fraudulent conduct), with EC 7-8 (informed client decisions), to advice about refusing a breathalyzer. The closest current Model Rule analogues are Rule 1.2 (scope of representation; not assisting crime or fraud) and Rule 2.1 (lawyer as adviser).

Citations and references

Rules of Professional Conduct:

• MR 1.2 (scope of representation)
• MR 2.1 (lawyer as adviser)
• NY Canon 7, EC 7-8, DR 7-102(A)(7)

Statutes:

• N.Y. Vehicle and Traffic Law secs. 1192, 1193-a, 1194 (as in effect in 1980)

Cases:

• People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845 (1978), refusal as evidence
• People v. Haitz, 65 A.D.2d 172, 411 N.Y.S.2d 57 (4th Dept. 1978), consciousness of guilt
• Minnick v. Melton, 53 A.D.2d 1016, 386 N.Y.S.2d 488 (4th Dept. 1976), revocation as civil sanction

See also

• NY State Bar Op. 529: Representing a fugitive client who refuses to surrender
• NY State Bar Op. 530: Turning over physical evidence held for a client

Source

• Landing page: https://nysba.org/opinion-522/