Can a defendant refuse to take a chemical test until an attorney is consulted before responding to the request?

Turning to defendant's claim that her right to counsel was violated, while an individual has the right to consult with an attorney in deciding whether to submit to a chemical test, that right is only a qualified right to counsel and not a constitutional one. People v. Keener 138 AD3d 1162 (3rd Dept., 2016). If a defendant arrested for driving while under the influence of alcohol requests to contact an attorney before responding to a request to take a chemical test, the police may not prevent access between the accused and his attorney, either in person or by telephone, unless such access would unduly interfere with the matter at hand or with the timely administration of the test. People v. Guernsey , 22 NY2d 224 (1968) ; People v. Washington , 23 NY3d 228 (2014).

However, there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing. People v. Smith , 18 NY3d 544 (2012). "If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, " ... a defendant who has asked to consult with an attorney can be required to make a decision without the benefit of counsel's advice on the question". Id. at 229.