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Last Updated on: 27th July 2023, 06:35 pm
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.
NY Refusal Hearing Notice
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:
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.
Order of Suspension Pending Prosecution
Notice of Temporary Suspension and Notice of Hearing
Todd A. Spodek is a NY Criminal Lawyer with Spodek Law Group P.C. Our office is located at 100 Church Street, 8th Floor New York, NY 10007. We can be reached 24/7 at (212) 300-5196.
If you have been stopped for suspicion of driving under the influence, every aspect of the process is important. This begins with the moment that the police officer approaches your vehicle. If you are asked to provide a breath sample, or take another test designed to elicit your blood alcohol content level, it is certainly within your rights to refuse to do so. If you do, a refusal hearing will be scheduled. You will want a lawyer to represent you at this hearing.
Types of Tests Used Today
Many police departments throughout New York, and indeed the country, use a variety of different machines designed to measure the blood alcohol content level of an individual suspected of drunk driving. The name of the machine is not so important as is its function. Each will use the breath sample from a driver that blows into them. The results of this test can then be used to either charge a person with a DUI or to let them go. As such, it is a rather serious matter and one that should not be approached lightly.
Basis for the Test
There is a stipulation under New York law that is taken to mean that consent to a blood alcohol content level test is given the moment an individual driver begins to operate a vehicle. This includes a test of the person’a breath, urine, blood, or saliva. The purpose of any such test is to determine the precise alcohol content in the blood at the moment. An driver also has the right to refuse such test, but such a refusal does not come without its consequences.
Consequences of BAC Test Refusal
If a driver is stoped for suspicion of driving under the influence of alcohol refuses to submit to a blood alcohol content level test, his or her driver’s license may be suspended by Criminal Court until a refusal hearing is scheduled. This refusal hearing is scheduled by the Department of Motor Vehicles, and this where a lawyer can definitely be an asset. If the accused driver were to lose the refusal hearing, several things may occur simultaneously.
The first thing that will happen if a refusal hearing is lost is that the driver’s license of the accused will be revoked for a period of one year. It is important to note that this suspension will remain in effect even if the drivers is eventually found to be innocent of the DUI charge itself. Subsequently, the Department of Motor Vehicles has the right to impose a civil find amount to a minimum of $500. These penalties will be tacked onto whatever criminal charges are filed at the time of the arrest.
Issues Covered at a Refusal Hearing
A lawyer will work with accused to prepare for a refusal hearing by first ascertaining a few facts related to the traffic stop. The officer must demonstrate that he or she had responsible grounds to believe that the driver was operating a vehicle under the influence of either drugs or alcohol. A lawful arrest of the driver must also occur. In addition, it is important to determine whether or not the police officer provided the driver with sufficient warning about the consequences of refusing to submit to a blood alcohol content level test. Finally, it is important to ascertain whether or not the driver did actually refuse to submit to the test.
Because of serious nature of a refusal hearing, it is best to have a professional and experienced lawyer on your side. Do not give up your rights. Due process must be followed every step of the way in a DUI arrest. If it is not, you deserve to be heard in a court of a law. If you have been arrested for a DUI and have a refusal hearing scheduled, contact a lawyer right away for assistance.
Do I have to take a breathalyzer, blood test, or urine test if I am stopped for DUI or DWI?
By operating a motor vehicle on a New York roadway, you have impliedly agreed to submit to blood alcohol content tests of your breath, urine, saliva or blood for purposes of determining any alcohol or drug content when you’re asked to do so by a police officer. He or she only needs probable cause to believe that you’re under the influence of alcohol or drugs. Implied consent also applies to portable breath testing at the site of a DWI stop.
Probable cause for blood alcohol content testing
Most DWI arresting officers will routinely testify that upon initially speaking to the defendant, he or she had slurred speech, red bloodshot eyes and had a strong odor of an alcoholic beverage on their breath. Those factors caused the investigating officer to suspect that the driver might be under the influence of alcohol or drugs. By displaying those possible effects of intoxication, the officer will then ask the driver to perform certain preliminary alcohol screening tests, otherwise known as roadside or field sobriety tests. Those tests might vary from precinct to precinct or even from officer to officer, but they ordinarily consist of:
Field sobriety and breathalyzer tests can be refused
If a driver has consumed alcohol before getting behind the wheel, it’s highly likely that submitting to any one of these tests will establish probable cause for a DWI arrest. He or she is also giving the prosecution more evidence to convict them with. Submitting to roadside or field sobriety tests isn’t mandatory.
Consequences of refusal
Regardless of whether a person submits to roadside tests and fails or refuses to perform them, there will be consequences. One of those consequences is a driver’s license revocation. The law allows you a hearing on this revocation with an administrative law judge from the Department of Motor Vehicles (DMV), but the suspension can stand, even if you’re found not guilty of the DWI in criminal court. Another consequence is that a refusal of breath testing at the police station can be used against you in a DUI trial when consciousness of guilt can be argued as a basis for the refusal.
The search warrant to draw blood
The next consequence is that the driver is taken to the local police station for what’s commonly called a breathalyzer test. The vehicle that was driven must be towed from the scene, and he or she is responsible for towing and storage charges. If the driver refuses the breath test at the station, the investigating officer can seek a search warrant from a judge to have blood drawn from the driver’s body for purposes of alcohol content analysis. The driver is also confronted with an immediate driver’s license suspension.
If you’re stopped on suspicion of DWI, no investigating officer is going to tell you that you have the right to refuse field sobriety tests and breathalyzer testing at the police station. Difficult snap decisions have to be made on whether to submit to these tests, and any decision is likely to have its own independent consequences. If you cooperate and take all of the tests, you’re probably giving the prosecution additional evidence to convict you with. If you refuse them, you face punishment anyway, and the refusal can be used against you in a DWI trial.
The decision that’s easy to make is to contact our law firm for your DWI defense. With the criminal DWI case and the DMV revocation cases pending, you’ll want to protect your rights by retaining a knowledgeable, respected and highly trained DWI defense attorney to represent you. Contact us right after any DWI arrest. The consequences of not contacting us are just too severe.
If you have been stopped for suspicion of driving under the influence in New York, you may want to refuse a breathalyzer, blood test, or urine test. However, refusing these tests have consequences such as a driver’s license revocation, which could stand even if you are found not guilty in criminal court. Additionally, the refusal can be used against you in a DUI trial. If you decide to refuse a test, a refusal hearing at the Department of Motor Vehicles will likely be scheduled, and you will want a lawyer to represent you at this hearing.
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