Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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Car accident fault may now hinge on required DWI testing if the New York legislature has its way. The state Senate, on April 7, 2014, unanimously passed a bill (S.1446/A.8569) requiring law enforcement officers to administer on-site testing for alcohol and illegal substance consumption at the scene of car accidents resulting in serious injury or death.

Senate Supported But Not Without Controversy

The Senate sponsor of the bill, Sen. John Flanagan (R-East Northport), believes the bill “provides police and prosecutors with the tools they need to better safeguard [the] roadways and help save innocent lives[.]” Car accident DWI testing has been discretional in New York, meaning officers are forced to make a decision on the spot whether to administer the tests.

The law is interesting for several reasons, and although it has passed the Senate unanimously, it is not without potential controversy. There are 4th Amendment issues that could come into play—particularly with injured motorists who feel they’ve been victimized and are now being harassed with mandatory sobriety tests. Car accident fault can be murky at best, particularly in accidents that are “he said/she said” situations. Furthermore, car accident DWI testing could create legal and insurance issues for legitimate victims who consumed legal amounts of alcohol prior to an accident.

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Other States Require DUI/DWI Testing Following Car Accidents

Per a 2002 National Highway Traffic Safety Administration study, only five states (Alaska, Georgia, Indiana, Maine and Nebraska) had laws on the books requiring mandatory DWI testing for surviving drivers. While common sense would seem to dictate that mandatory testing laws would act as a deterrent to impaired driving, the potential constitutional and insurance ramifications could cause some members of the public to chafe at what they view as an unlawful imposition.

Removing Discretionary Testing Levels Playing Field

The flipside of the argument is that making car accident DWI testing mandatory will, in fact, prevent illegal testing. It removes a law enforcement officer’s discretion from the equation and levels the playing field. The law could effectively limit the number of serious or fatal car accident cases that are dismissed on technicalities relating to allegedly illegal DWI testing.

Car accident fault, on its own, is always a controversial and heated topic. Mandatory car accident DWI testing, while not the norm, is gaining traction throughout the country and will certainly not be without controversy. The New York bill, which awaits passage by the state Assembly, will be another chapter in the constantly-developing body of law surrounding car accident fault.