Refusal hearings at the NY Department of Motor Vehicles (“DMV”)
Every Friday and Saturday Spodek Law Group P.C. gets calls from individuals charged with Driving While Ability Impaired (“DWAI”) or Driving White Intoxicated (“DWI”) in New York City. Motorists are stopped because they were swerving, driving to fast, driving to slow, (committed or more appropriately) alleged to have committed a violation of the vehicle and traffic law (“VTL”) and depending on what happens in that interaction the police may suspect that you have been drinking. The Police make ask you to take a field test and to come back to the Intoxicated Driver Testing Unit (“IDTU”) center to take a breathalyzer test. This is an important moment because the results of a breathalyzer exam can make or break a drunk driving prosecution.
In another blog post, I will discuss the factors a motorist charged with DWI or DWAI should consider before they choose to submit to breath test or refuse it. If you do refuse the breathalyzer then your license will be immediately suspended pending prosecution At your criminal court arraignment, the presiding Judge will alert the defendant to the date and time of the refusal hearing. If you are arrested in Manhattan, it will be scheduled at the DMV office at 19 Rector Street, 2nd Floor. If you are arrested in Queens, it will be scheduled at the DMV office at 168-35 Rockaway Boulevard 2nd Fl, Room 8 Jamaica, NY 11424.
The refusal hearing will be heard by an Administrative Law Judge. There are four limited issues at the refusal hearing that are detailed in Vehicle and Traffic Law (“VTL”) 1192(2)(c).
The four issues at a refusal hearing at the NY 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 was 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 judgement. 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.