Refusing to take a chemical test in New York can come with very serious consequences. For example, a motorist who refuses a properly requested breath test can have his or her license revoked for a minimum period of one year even if they beat the DWI case. If a person has prior alcohol related incidents, the period of revocation can be much longer, even life. Fortunately, before revoking a license because of an alleged refusal, the motorist is entitled to some level of due process. In New York this requires that the Department of Motor Vehicles hold a hearing to determine whether the motorists’ license will be revoked. In New York the criminal case, the DWI, and the refusal follow two different tracks. The DWI is handled in Court while the refusal goes to a hearing before an administrative law judge that works for DMV. In addition, the burden of proof is lower in refusal hearings.
Last week, Tilem & Associates Partner Peter Tilem conducted a “refusal hearing” in the New York and beat the refusal. That means that the police did not sustain their burden of proving the elements necessary to revoke the license and the matter was dismissed by the DMV administrative law judge. This particular motorist was charged with both DWI and had the refusal. He had two prior convictions for Driving While Ability Impaired by Alcohol (DWAI) and either a conviction in the DWI case (including a conviction for a reduced DWAI) or a finding that he refused could have resulted in a lifetime revocation of his New York driving privileges. Thankfully, after an almost one hour cross-examination of the police officer the DMV judge dismissed the refusal.
At a New York DWI Refusal hearing the police must establish 4 separate elements in order to win the refusal hearing.