Generally, no. Once an officer decides which test to administer — whether that’s a field sobriety test or the official chemical test at the station — you don’t have the legal authority to demand a substitution. Your position at each stage is a binary one: consent to what’s being offered, or decline it.
That said, the full picture is more nuanced, and there are two important exceptions that can work in your favor.
For Field Sobriety Tests: Consent or Refuse, No Negotiation
If an officer asks you to perform the Walk-and-Turn, One-Leg Stand, or Horizontal Gaze Nystagmus test, you cannot request a different physical test in its place. Asking to do something else instead — or proposing an alternative you feel more confident about — will typically be treated as a refusal of the test offered.
The more relevant question with FSTs isn’t substitution — it’s whether to participate at all. Field sobriety tests are voluntary in New York, and declining them carries no mandatory administrative penalties. You cannot force a swap, but you can decline entirely. For most people in most circumstances, that’s the stronger position.
For Chemical Tests: The Same Rule Applies — With One Exception
When police ask you to submit to the official chemical test at the station — the DataMaster breathalyzer, or a blood or urine test — you cannot compel them to administer a different type of test than the one they’ve chosen. If the officer offers a breath test, you don’t get to insist on a blood test instead.
The “can I request a blood test instead” question has its own full answer, but the short version is: no, you can’t compel the switch. Attempting to negotiate, delay, or condition your compliance on receiving a different test will be treated as a refusal, which triggers the mandatory minimum one-year license revocation and $500 civil penalty under New York’s implied consent law. Those consequences are real and immediate, and they apply whether the refusal was explicit or was treated as constructive because you kept asking for conditions the officer wasn’t required to meet.
The Exception: Physical Inability to Provide a Sample
There’s a meaningful carve-out that applies when you genuinely cannot physically complete the test offered — not as a strategic choice, but due to a real medical condition.
If a medical condition, such as asthma, COPD, a serious lung injury, or a related respiratory issue, makes it physically impossible for you to provide an adequate breath sample, you cannot legally be deemed to have “refused” the test. The key distinction is willful non-compliance versus physical inability. A true physical inability to perform the test is not a refusal in the legal sense.
In those situations, police may be required to offer an alternative test — typically a blood or urine test — to obtain a chemical sample. Your attorney would establish this defense using your medical records and, where appropriate, expert testimony to demonstrate that your inability was physical rather than a choice.
If you have a known medical condition that could affect your ability to provide a breath sample, communicating this clearly and specifically — not vaguely — at the station matters. What you say, and how you say it, shapes whether the situation is documented as a refusal or a physical impossibility.
The Right You Do Have: An Independent Test After Submitting
While you can’t demand a substitution, New York law gives you an important right that’s separate from the police-administered test. If you submit to the official chemical test, you are entitled to have a qualified person of your own choosing administer an additional chemical test — typically a blood test — at your own expense, immediately afterward.
This independent test is a powerful defense tool. If the official breathalyzer result is high or questionable, an independent blood test administered close in time can provide comparison evidence that your attorney can use to challenge the official reading. The breathalyzer and blood testing measure different things in different ways, and that divergence can matter significantly at trial.
Your attorney will often arrange for this independent test as one of their first actions after being retained. If you want to preserve this option, making that call before or immediately after the chemical test is the critical timing window.
What to Take Away
The practical framework is this:
| Situation | Your Options |
|---|---|
| Officer offers FST | Consent or decline — no substitution |
| The officer offers a breathalyzer | Consent or decline — no substitution |
| You cannot physically provide breath | After submitting to the official test |
| Officer offers a breathalyzer | Communicate medical reason clearly — may be entitled to an alternative test |
Requesting an attorney before the chemical test is your best tool for navigating all of these decisions in real time. The choice of whether to take the test, what to say about any physical limitation, and whether to arrange an independent test immediately afterward all benefit from legal guidance in the moment — not in hindsight.
What happens after the chemical testing is complete follows its own sequence, but the decisions made during testing are often where cases are shaped most definitively.
New York Vehicle and Traffic Law § 1194 governs chemical testing requirements, the implied consent framework, and the right to an independent test.
Disclaimer: This overview is for informational purposes only and does not constitute legal advice. Every case is unique — contact a knowledgeable DWI attorney for personalized guidance.
