Many drivers wonder what are the consequences if they refuse to submit to various tests while they are suspected of Driving While Intoxicated (DWI). The answer is not as simple and the information provided below should clarify many of the issues related refusing to submit to chemical or field tests.
First, it should be noted that when one gets pulled over for suspected DWI, three separate and distinct types of tests are given: (1) field sobriety tests; (2) breath screening test and (3) a chemical test using a device and may include blood or urine test as well. A charge for refusal for testing primarily deals with the third type of test since much of evidence presented to the court and DMV is based on the reading of the device used.
There are two distinct types of proceedings when one is charged with DWI: (1) a criminal procedure that is brought by the People (commonly known as prosecutor) and (2) an Administrative procedure known as a Refusal Hearing, which is brought by the New York Motor Vehicle Commission (commonly known as the “DMV”). Both processes run independently. It should be noted that refusing to submit to a chemical test is NOT a criminal charge.
While both a criminal and administrative proceedings result in one common consequence, the revocation of a driver’s license, there are few other consequences to keep in mind. The administrative consequence of chemical test refusal is the revocation of your driver’s license. Keep in mind the revocation of your driver’s license as a result of the DMV hearing is distinct from the revocation of your license as a result of a criminal conviction.
A result of the criminal case is either a conviction or acquittal of the charges. If a conviction is obtained, it becomes part of a driver’s criminal record.
On the other hand, the result of a DMV proceeding is to solely determine the circumstances with respect to the chemical test refusal and the consequence is to revoke your license.
The prosecution cannot use the fact that you refused to take tests against you in the criminal case. There is no requirement to submit to a field sobriety test. Furthermore, there is no need to submit to a breath screening test, but be warned that the failure to do so results in a traffic infraction.
It should also be noted that the administrative revocation period does not run parallel to the criminal court revocation period of your license. If your license was revoked by the criminal court, and you had a subsequent refusal hearing and an administrative judge revoked your license, then the period of revocation starts from the end of the refusal hearing. However, if you waived your right to the refusal hearing, then your revocation period starts from the day of your first court appearance.
If a driver refuses to submit to a chemical test, he or she must be given a refusal warning. In essence, this warning should state:
You are under arrest for driving while intoxicated
A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege, whether or not you’re convicted of the charge for which you are arrested
If you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest
Will you submit to a chemical test of your (blood/breath/urine) for alcohol?
Be wary that these warnings will be read you only if you refuse the initial offer to submit to a chemical test that. The warning must be clear and unequivocal and furthermore, and if incomplete, the chemical test will be invalidated.
The law further states that any refusal must be persistent. This means that you must be offered two opportunities to submit to the chemical test, and according to the recent case law, “at least one of which must take place after being advised of the sanction for refusal”.
The refusal is hearing is usually conducted at the DMV office. A notice of the hearing will be given to you at your first court appearance.
The four issues at a refusal hearing at the DMV are:
Did the police officer have reasonable grounds to believe that the defendant had been driving under the influence or while his/her ability were impaired?
Did the police officer make a lawful arrest?
Was the defendant given sufficient warning, in clear or unequivocal language, prior to the refusal, that the refusal to submit to the chemical test would result in the immediate suspension and subsequent revocation of the defendant’s license or privilege to operate a motor vehicle in New York?
Did the defendant, after reasonable grounds have been shown, following a lawful arrest, and following sufficient warning of the consequences, then refuse to submit to a chemical test?
After the refusal hearing is completed, if the ALJ “finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal.”
On the other hand if after the Refusal Hearing, the hearing officer “finds all of the issues in the affirmative, such officer shall immediately revoke the license or permit to drive or any non-resident operating privilege”.
The ALJ will admit the notice to appear into evidence as the first exhibit, the second piece of evidence will be the Refusal Report that the Police Officer filled out. Once any evidence is presented, there will be an opportunity for cross examination. Once the refusal hearing is completed, the Administrative Law Judge can render a decision immediately, or reserve judgment.
The burden of proof at the refusal hearing is clear and convincing evidence. One the first date of the refusal hearing, the Police Officer who arrested you will be given an opportunity to prosecute the case. If the Police Officer does not appear at the refusal hearing, then the ALJ will adjourn the hearing and give the Police Officer an opportunity to appear. In the interim, your drivers license will be returned.
The second refusal hearing will be scheduled a couple of month’s down the line. This maybe scheduled after the criminal case is over. If the Judge proceeds with the hearing, without an officer the ALJ will render a decision based on the documents. The refusal hearing in New York is a free shot for your criminal defense attorney to cross examine the police officer without a district attorney being there to prepare, coach and object to any questions. This testimony can be later used during the criminal proceedings.
The Drinking Driver Program (“DPP”) consists of seven classes totaling a minimum of 15 hours that are designed to deter future violations through the education of the violator.
A conditional license can be issued only if you are admitted to the program. Some of the uses of a conditional license include: driving to and from a place of employment or driving to and from class at an accredited school.
If a driver already participated in the program, he or she is precluded from participating for another five years. Keep in mind a previous DWI conviction within the past five years also precludes a driver from participating in the program.
With respect to refusals of chemical tests, a full driver’s license is not restored at the end of the program, but will continue on a conditional driver’s license for the period of revocation.
Spodek Law Group represents clients in DWI criminal cases and refusal hearings in New York City.
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