DWI REFUSAL HEARINGS IN NEW YORK

May 11, 2009 by Peter Howard Tilem

Anyone arrested for Driving While Intoxicated in New York should be offered an opportunity to submit to a chemical test of their blood, breath or urine. If an offender refuses the chemical test in New York their license may be revoked for a period of one year regardless of whether or not they are ultimately convicted of DWI (Driving While Intoxicated) or DWAI (Driving While Ability Impaired). Due process requires that before your license can be revoked for one year, a hearing must be held to determine whether or not you refused to submit to a chemical test. Experienced criminal defense lawyers who handle DWI cases are aware of the value of these hearings to their clients.

A New York, DWI refusal hearing is conducted by a DMV (Department of Motor Vehicles) administrative law judge who must find that several factors occurred:

1. That there was reasonable cause (probable cause) for your arrest for DWI, DWAI or any violation of section 1192 of the Vehicle and Traffic Law,
2. Whether or not the arrest of the person was lawful,
3. Whether a person arrested was given adequate warnings of their refusal to submit to a chemical test , and
4. Whether the person actually refused to take the test.

The stakes at the refusal hearing are very high. If you win, your license, which was temporarily suspended at your arraignment on the criminal case will be lifted and your driving privileges will be fully restored. If you lose a New York refusal hearing your license will be revoked for a minimum of one year regardless of what happens in your criminal case. In addition, this is an opportunity for your lawyer to cross-examine the police officer regarding topics that go right to the heart of the criminal case pending against you at a very early stage of the proceedings.

These cases are winnable and experienced DWI lawyers can and do win these cases. In addition to winning these cases the opportunity for your attorney to cross-examine the main witness (or witnesses) against you is invaluable. The hearings are recorded and a transcription of the hearing can be extremely valuable in preparing your defense. It is very rare in criminal cases to be able to examine a witness at such an early stage in the proceeding.

In a nutshell, these extremely important hearings are not taken seriously by both attorneys and motorists alike but they should be carefully examined. No one should waive their hearing without seriously considering the benefits of waiving the hearing against the benefits of participating in the hearing and a person who wishes to challenge their DWI charges should never waive the refusal hearing. If you are charged in New York with DWI, DWAI, Driving While Impaired by Drugs or any other violation of section 1192 of the VTL, contact attorneys who are experienced with the charges and who regularly participate in the DWI refusal hearing.

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