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.

  1. Whether the police had reasonable suspicion that the motorist was driving in violation of NY VTL 1192 (NY Drinking and Driving)
  2. Whether the police had probable cause to arrest the motorist
  3. Whether a motorist was given a clear and sufficient warning of the consequences of the refusal
  4. Whether the motorist actually refused

If the police fail to prove any of these elements the refusal should be dismissed.

The refusal hearing often gives a defendant charged with a DWI or DWAI and who refuses a breath test a unique and valuable opportunity to cross examine the police officer prior to the criminal case advancing.  Unique, because I can think of no other circumstance in a New York criminal case where the defense attorney gets to question the witness under oath prior to a suppression hearing or trial in a criminal case.  Valuable, because the police office will give testimony under oath which is audio recorded and can be transcribed and used at the suppression hearing and at trial.  The testimony at the refusal hearing is often early in the case, outside the presence of the prosecutor and and often before the prosecutor has had time to prepare the police officer to testify.

There are many reasons to take New York refusal hearings very seriously.  However, many criminal attorneys who claim to have experience with DWI cases will often waive them or allow their clients to attend these hearings without counsel.  An experienced DWI attorney should not only attend a refusal hearing but should be prepared to vigorously cross-examine the officer for an extended period of time about all of the circumstances that led up to his stop of the motorist and everything that he did after stopping the motorist until the motorist’s alleged refusal.  In addition, lawyers need to understand the consequences of multiple DWI incidents and the possible consequences of a refusal after prior offenses.

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