DMV Refusal Hearing Lawyers
If you’re pulled over in New York for a suspected DWI, you’ll likely be asked to submit to blood alcohol content testing. New York is what’s known as an “implied consent state.” That means that if you’re stopped by police while driving, and you’re suspected to be under the influence of alcohol, you consent to submit to testing to determine your blood alcohol content level.
A person who has been detained on a routine DWI stop in New York isn’t required to submit to any type of implied consent blood alcohol content testing at all. That includes standard roadside field sobriety testing consisting of:
- The horizontal gaze nystagmus test
- The walk and turn test
- The one legged stand test
The investigating officer might also want the driver to perform roadside blood alcohol testing with a portable breath testing device. There are consequences to refusing any of these tests though. Failure to submit to field sobriety testing can result in confiscation of your driver’s license on the spot, and you can be taken to the local police station for additional testing. Your vehicle will also be towed from the scene of the traffic stop, and you’ll be responsible for the towing and storage fees.
Additional blood alcohol content testing
After being transported to the local police station, you’ll be asked to submit for what’s commonly known as a breathalyzer test. You can refuse to take that test too, but that won’t stop a DWI prosecution. In a trial, your refusal to submit to breathalyzer testing at the police station can be used against you as consciousness of guilt. An automatic driver’s license suspension effectuates too.
Involvement in an accident with personal injuries or a fatality
Not consenting to blood alcohol content testing becomes irrelevant in cases involving personal injury or death. Police can ask a judge to issue a search warrant for your blood to be tested. They’ll get your blood one way or another.
The two cases
Even though you can’t be charged criminally for refusing to submit to blood alcohol testing, two cases will spin off of the DWI arrest. Those are the actual DWI prosecution itself and a refusal hearing before a Department of Motor Vehicles (DMV) hearing officer.
The Report of Refusal
This report will be completed by the arresting officer at the police station after you’ve been taken into custody. The DMV hearing officer must schedule a hearing on the report within 15 days of the date of your refusal. This is a “hard” suspension, and there is no special license or permit that you can obtain to avoid it.
The DMV hearing
The administrative law judge at the DMV refusal hearing will be looking at four fundamental issues. Those are:
- Whether the arresting officer had a reasonable suspicion that you were driving while intoxicated or under the influence of drugs
- Whether that officer had probable cause for your arrest
- Whether you received a clear and sufficient warning that your driver’s license would be suspended for one year if you refused to submit to blood alcohol testing
- Whether you indeed refused testing
Should the administrative law judge find that any one of these issues is answered negatively, your license suspension will be cleared. If he or she finds in the affirmative on all four issues, your license is revoked for a minimum of one year. That’s when a conditional license is going to be needed, but the only way to get that is by pleading guilty or being found guilty in the underlying DWI case. A conditional license might be obtained if you’re admitted to the Drinking Driver Program, but your conditions of driving will be highly restrictive. For those who refuse chemical blood testing after a DUI stop, the only way to get their full license back is after the revocation period passes.
How To Get Your Car Back After NYC DWI Arrest
If you are arrested in NY for Driving While Intoxicated (“DWI”), Driving While Ability Is Impaired (“DWAI”), or any other NY drunk driving charge it is possible that you car will be taken by the New York Police Department for forfeiture, arrest evidence or for safekeeping. If you want to retrieve your car after your NYC DWI arrest, you will need to know the various city agencies involved and whether your car is being held for arrest evidence, forfeiture or safekeeping.
If you car is taken for arrest evidence, then it is solely being kept as evidence of the crime. Shortly after your arrest, you will receive in the mail a (2) two page letter from the New York City Police Department, Property Clerk Division One Police Plaza, Room 208 New York, NY 10038. The letter will state that in order to retrieve your car you need the following:
- Certificate of Title or Salvage Certificate MV907A for Junk/Salvage vehicle. The title must have the owners information imprinted by the state of issuance. Signed over titles will not be accepted. You will need an original.
- Photo identification. This can include Drivers License, Passport, Government Issued Identification.
- Proof of Insurance (Only if the vehicle is to be driven)
- Notarized letter from titled owner authorizing the representative to retrieve if the car if the owner is not present to claim the vehicle/motorcycle.
- If a lien holder is claiming the vehicle (1) a notarized letter from the lien-holder describing the details of the default, and (2) a notarized copy of a conditional sales contract or agreement
- If an insurance company is claiming the vehicle then a certificate of title or salvage certificate MV907 A is required. If this is not available, then a receipt for release of the vehicle (167-E) is required.
- Representative of a deceased owner claiming the vehicle/motorcycle will need an original surrogate court letter or administration, and the original death certificate
- Dealers, lien holders, and insurance companies are recommended to call prior to coming to the facility to ensure that all the necessary documents are acceptable to claim a vehicle/motorcycle
What Happens If the Vehicle is Inoperable or Will Not Start?
A motorist must provide his or her own tow truck if the vehicle does not start or is inoperable. If you are retrieving a motorcycle you may either tow it or retrieve it with a van or truck in which the motorcycle can be stored. Motorcycles can not be driven out of the storage facility due to safety concerns.
What Happens if the Vehicle is Being Held as Forfeiture Evidence?
If the vehicle is being held as forfeiture evidence, you will want to notify the auto pound in which your car is being held and the New York Police Department Civil Enforcement Unit 2 Lafayette Street, 5th Floor New York, NY . (917) 454-1111.
Where are the NYPD Auto Pounds?
Erie Basin Auto Pound
700 Columbia Street
Brooklyn, N.Y. 11231
Take the F train to the 4th Avenue Station. Transfer to the B77 bus (Westbound) to Columbia Street & Lorraine Street. Walk four blocks (south) on Columbia Street to its end – the Pound is on the pier at the waterfront. OR
Take the R train to the Prospect Avenue Station. Transfer to the B77 bus (Westbound) to Columbia Street & Lorraine Street. Walk four blocks (south) on Columbia Street to its end – the Pound is on the pier at the waterfront.
From North Brooklyn, Queens & Long Island:
Take the Brooklyn queens Expressway (West) to the Atlantic Avenue Exit. At the exit ramp, make a left onto Columbia Street (Southbound). Follow Columbia Street to its end, turn right and bear left around the back of the brooklyn Battery Tunnel entrance and then turn right onto Columbia Street. The Pound is on the pier at the waterfront.
From South Brooklyn & Staten Island:
Take the Brooklyn Queens Expressway (Gowanus Expressway) (East) toward the Battery Tunnel. Get off at the Hamilton Avenue exit. Proceed straight past the Brooklyn Battery Tunnel. Bear left and go around the back of the tunnel entrance. Then turn right onto Columbia Street. Follow Columbia Street to its end – the Pound is on the pier at the waterfront.
Springfield Gardens Auto Pound
174-20 North Boundary Road
Springfield Gardens, NY 11430
What Happens if the Vehicle is Bring Held as Arrest Evidence?
If the vehicle is being held as arrest evidence then you will need your NY criminal defense lawyer to reach out to the Assigned District Attorney and request a District Attorney Release. A District Attorney Release is a letter that states that the vehicle is no longer needed as arrest evidence and the NYPD can release the vehicle. The Assistant District Attorney will draft a letter and submit to the Property Release Unit of the District Attorneys Office in the County in which your case is being prosecuted. Your criminal lawyer will be able to retrieve the letter on your behalf.
District Attorney Property Release Units:
Manhattan District Attorney Property Release
1 Hogan Place, Room 732
New York, NY 10013
Bronx District Attorney Property Release
215 East 161st Street
Bronx, NY 10451
Brooklyn District Attorney Property Release
120 Schermerhorn Street, Room 205B
Brooklyn, NY 11201
Queens District Attorneys Property Release
125-01 Queens Boulevard
Queens, NY 11415
Staten Island District Attorneys Property Release
67 Targee Street
Staten Island, NY 10304
NYPD Legal Bureau
Civil Enforcement Unit
2 Lafayette Street, 5th Floor
New York, NY 10007
Telephone: (917) 454-1100
Fax: (817) 454-1187
The attorneys at the Civil Enforcement Unit have the legal authority to forfeit any car that was used in a DWI or DWAI. Generally, only if facts of a particular case are so extreme or if you are a repeat offender will the NYPD pursue litigation. Generally, the NYPD attorney will be amenable to a forfeiture settlement agreement which involves evaluation of the offender for alcohol abuse by an independent state-certified counselor and the completion of any recommended treatment prior to the release of the vehicle.
SETTLING WITH THE NYPD LEGAL BUREAU
Once we are retained on a Drunk Driving case in which the vehicle was taken for forfeiture we sent a letter of representation to the NYPD legal bureau letting them know that we represent you in relation to the forfeiture of your car. In the event the NYPD legal bureau screens your case and decides to propose a settlement, your attorney will receive a settlement package by fax or mail.
The proposed settlement will include the following:
- An alcohol/substance abuse assessment of your client must be performed by a state certified office of alcoholism and substance abuse services (OASIS) counselor. In the event that the OASIS counselor recommends any particular course of treatment, your client will be required to participate successfully in the treatment program. Proof of completion must be sent directly to the NYPD legal bureau. Generally, all terms of the settlement offer must be completed within 6 (six) month’s. However, you can request an extension for cause and it will likely be granted.
- You accept and sign the Settlement Agreement, you fill out the Consent to Disclose Form and the Hold Harmless Agreement. All three (3) of these documents must be signed, notarized and the originals returned to the NYPD legal bureau. Once signed and notarized, it is worth it to fax over copies this way you can get the process moving.
- There will be an administrative fee of holding the vehicle. The minimum fee is $100.00 and the maximum fee is $500.00. It is charged at $5.00.00 per day. This fee should only be submitted after the other terms of the settlement have been completed. The fee is payable by attorneys escrow check, bank money order, or certified bank funds. All checks should be made payable to the Property Clerk of the NYPD legal bureau. The NYPD generally will refuse any checks that are dated more then 30 (thirty) days
Do Police Have to Read You Your Rights in a DUI Case?
Every person has rights. These are basic human rights as well as legal rights, and all people are entitled to receive those rights without question or complaint regardless what they did or were accused of doing. If you are pulled over while driving and accused of driving under the influence of either drugs or alcohol, you wonder about your rights. If you are guilty, you might wonder if you have rights because of your guilt. The answer is yes. You always have rights, and you are entitled to ask for them immediately. The law becomes a little bit tricky when you take into account that an officer who is arresting you for driving under the influence is not necessarily mandated by law to read you your rights in that moment.
Knowing Your Rights
Your rights are called Miranda Rights. The term is probably familiar to you as it’s used often in television and in the movies. An officer might ask you if you’re aware of your Miranda Rights, and he might or might not read them to you. It’s not required he do this immediately, but you are entitled to use your rights beginning the moment you are arrested for any DUI. These are the rights that allow you the right to say nothing and ask for an attorney among other things.
Anything you say to an officer is considered useable in a court of law, and it might hurt your case. Under no circumstances should you say a word to officers, especially in a DUI case in which an officer did not read you rights. There is a very specific reason for this aside from the fact you could unknowingly incriminate yourself.
When Miranda Rights are Required
Before you speak to an officer, it’s imperative you know that there is a time when reading the Miranda Rights is mandatory, and there is a time it is not. However, you should still say nothing. Your arresting officer is required by law to read you the Miranda Rights when you are already in police custody and being questioned or interrogated about the crime you were accused of committing. In this case, it’s when you are arrested and in the custody of an officer discussing your DUI.
If you are arrested and no rights are read, nothing you can say can be used against you in a court of law. The officer has broken protocol and failed to advise you that you have rights. This means those rights have been violated and are no longer in question.
When Miranda Rights are Not Required
DUI cases are not always easy to explain. If an officer pulls you over under the suspicion of driving under the influence, he’s not required to read you your rights. He can, however, use anything you say or do in this time against you in court if it’s relevant to your case. Even after he has issued a breathalyzer or a blood test to see if you’ve been drinking, he is not required to read you your rights.
It’s not until the officer places handcuffs on you and/or places you in his police cruiser you are required to have your rights. If he fails to issue them at this point, he has broken protocol. It’s our advice to everyone pulled over under the suspicion of driving under the influence you say nothing at all no matter what. Do not acknowledge the results of your field sobriety test. Do not deny you were drinking or using drugs. Do not admit you were doing it. Do not speak at all other than to ask for an attorney or to ask for your rights.
Even the most insignificant comment could cause you to incriminate yourself. You could end up in trouble more than you should be because of comments you made at this time, even if you haven’t been read your rights at the moment. The first thing you do is call our offices to speak with a knowledgeable attorney about your rights and your case, and speak to no one but your attorney when he or she arrives to discuss your case.
We handle: Queens DWI car forfeiture, Brooklyn DWI Car Forfeiture, Staten Island DWI Car Forfeiture, Bronx DWI Car Forfeiture, Long Island DWI Car Forfeiture, Suffolk County DWI Car Forfeiture, Nassau County DWI Car Forfeiture,