New York Criminal Attorney Blog

Here at the New York Criminal Defense Firm of Tilem & Campbell we often represent defendants who, in addition to being charged with Driving While Intoxicated or Driving While Ability Impaired (please see previous posts), refused to submit to a chemical test. Almost always, the chemical test in question is a Breathalyzer or similar machine such as an Intoxilyzer which is usually used in New York City or DataMaster which is often used in Westchester County. Our attorneys are often confronted with questions about the consequences of the refusal. There are no New York State criminal consequences; however, there are other consequences that result from a refusal. First, the refusal can be introduced at trial as what is known in New York as consciousness of guilt evidence. Second, at the time of your arraignment, the court will immediately suspend your license pending the prosecution of your case.

Whether one should refuse a chemical test or not is a complex question well beyond the scope of this Blog. As always, my advice is to consult with a skilled and experienced criminal defense attorney. This Blog provides general informative reading but is not a substitute for personalized legal advise.

Essentially, any person who operates a motor vehicle in New York is be deemed to have given consent to a chemical test of, among other things, his or her breath for the purpose of determining the alcoholic and/or drug content of that person’s blood. See generally VTL 1194(2)(a). However, before an officer may request that a motorist take a chemical test, either a lawful arrest for Driving While Intoxicated or Driving While Ability Impaired, or a positive result on a lawfully requested breath screening test must have occurred. (Note: a breath screening test is NOT a Breathalyzer but is instead a test of one’s breath (not blood) given by an officer on the side of the road. The machine used is a small handheld device. The results can be used to establish probable cause to arrest for DWI or DWAI but the results are not admissible at trial. Breath Screening Tests will be discussed in subsequent Blogs.)

Where a motorist, after being properly warned of the consequences, refuses to take a lawfully requested chemical test, his or her license is immediately suspended (at arraignment) and, if the defendant subsequently loses his or her Refusal Hearing, revoked for refusal to submit to the chemical test (most likely a Breathalyzer or similar machine). NY VTL 1194(2)(b)(1). Please view the diagram at tilemandcampbell.com to see specific revocation periods. Where a defendant refuses, the officer must prepare a “Report of Refusal” which is given to the judge at arraignment.

The arraignment court is then required to temporarily suspend the defendant’s license pending the outcome of a DMV Refusal Hearing. VTL 1194(2)(b)(3). (Note: in New York City arraignment usually occurs within about 24 hours, the accused is held in jail for that period pending the arraignment but in most courts in Westchester County a summons is issued and the arraignment can take place weeks later.) The arraignment court must then notify the defendant of his or her “Refusal Hearing” date. In that regard, VTL 1194(2)(b)(4) requires that the arraignment court provide the defendant with a scheduled Refusal Hearing date.

The Refusal Hearing is an excellent opportunity for your attorney to cross-examine the officer without the prosecutor present. Because the officer need not appear but instead, may simply provide his report, it is sometimes wise to subpoena the officer to the hearing. The Refusal Hearing itself will be addressed in subsequent Blogs.