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Posted: April 15, 2019

DWI Refusal Hearings

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Drivers who operate motor vehicles on the roads and certain private grounds in New York State must consent to the administration of a breath test to determine the blood alcohol content of their blood, if the police reasonably suspect them of operating the vehicle in violation of New York’s laws prohibiting impaired or intoxicated driving.  If the breath test indicates that the driver has consumed alcohol, the police may ask the driver to take a chemical test to determine the alcohol content of his or her blood.  Drivers who operate motor vehicles in New York State are deemed to have given consent to the administration of a chemical test of either their breath, blood, urine, or saliva if the police officer has reasonable cause to believe that the driver was violating New York’s laws related to impaired or intoxicated operation of a motor vehicle and the chemical test is administered within two hours after the initial breath test.

If a driver is offered the opportunity to take a chemical test for his or her blood alcohol content and refuses to take the test, the police must inform that person that his or her license, permit to drive or any non-resident operating privilege will be immediately suspended and that it may subsequently be revoked as a result of the driver’s refusal.  If, after being informed of these consequences, the driver maintains his or her refusal to take a chemical test, the driver’s license, permit or non-resident operating privilege must be temporarily suspended, whether or not the driver is ultimately found guilty of the charge for which the driver was arrested or detained.

The arraignment court or the arresting police officer must provide the refusing driver with a refusal revocation hearing date and a refusal revocation hearing waiver form.  If the driver waives the refusal revocation hearing, the Commissioner of Motor Vehicles must immediately revoke the license, permit or non-resident driving privileges of such person as of the date of the Commissioner’s receipt of the refusal hearing waiver form.

If a driver’s license, permit, or non-resident driving privilege is temporarily suspended for refusing to take a chemical test, the Commissioner of Motor Vehicles must schedule a refusal revocation hearing within 15 days of the driver’s arraignment for an arrested person.  If the refusal revocation hearing is not scheduled for a date within 15 days of the arrested person’s arraignment, then the driver’s license, permit, or non-resident privilege to drive is temporarily reinstated pending the refusal revocation hearing date.  A refusal revocation hearing is limited to the issues of:  (1) whether the police officer had reasonable grounds to believe that the driver was operating in violation of New York’s impaired or intoxicated driver provisions, (2) whether the police officer made a lawful arrest of the driver, (3) whether the driver was given adequate warning, in clear and unequivocal language, prior to the driver’s refusing to take the chemical test that such refusal would result in the immediate suspension and ultimate revocation of his or her license, permit, or non-resident privilege to drive and that the refusal can be used against him or her in any criminal case brought against him or her arising out of his or her arrest, and (4) whether the driver refused to submit to a chemical test or any portion thereof.  If the Commissioner of Motor Vehicles satisfies all four of these requirements by a preponderance of the evidence at the refusal revocation hearing, then the hearing officer must immediately revoke the license, permit to drive, or non-resident operating privilege of the driver.

Any license, permit, or non-resident driving privilege that is revoked as a result of the driver’s refusal to submit to a chemical test analysis for blood alcohol content may not be restored for at least one year after the revocation is imposed and may not be restored thereafter without the Commissioner of Motor Vehicles deciding to do so.  In addition, the driver is also subject to certain monetary civil penalties for refusing to consent to the chemical test.

Evidence of the driver’s refusal to take a chemical test is admissible in the prosecution of that person for any violation of New York State’s impaired or intoxicated laws if the prosecution can show that the driver was given sufficient warning of the fact that it could be used against him or her during such a proceeding in clear and unequivocal language.

If you would like more information regarding refusing to take a chemical test of your blood during a traffic stop, you can review section 1194 of the New York State Vehicle and Traffic Law or call me at 917-817-9001 or e-mail me at scott@fenstermakerlaw.com.  This blog posting is not designed to provide you or anyone else with legal advice.  If you would like legal advice, please contact me or your attorney.

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