New York DWI Refusal Hearings

Over the years I have represented many clients who were arrested for Driving While Intoxicated (DWI) and accused of refusing to perform a chemical test. The discussion below does not apply to the alcohol sensor test you may have been given on the roadside. Refusing to blow in the portable roadside machine is punishable only by a traffic ticket. The test I'm talking about here is the breathalyzer machine the police keep at the station that you will be asked to blow in to, after you have been arrested for DWI.

When you get a drivers license in New York, you are essentially entering in to a contract with the state. You agree to do a whole bunch of things in return for the "privilege" to drive. One of the things you agree to do is voluntarily submit to a test of your blood, breath, or urine if you are suspected of driving while intoxicated, impaired, or under the influence of drugs. The penalty for refusing to submit a sample is the revocation of your license and a $750.00 fine payable to the Department of Motor Vehicles. There are other consequences as well but those are the biggies. Whether refusing to submit is the right thing to do is always a topic of debate among DWI lawyers. I'll talk about that in a future post.

When you are arrested for DWI and a police officer concludes you are refusing to "blow", he or she will mark the case down as a "refusal". If you read your paperwork you will see it marked as such. When you show up for your first court appearance, the judge will inform you that he or she is temporarily suspending your license because you refused. Hopefully your lawyer will explain to you in advance what is going on. The clerk will come up with some paperwork for you to look over and sign. Should you decide to actually read it, it's going to take a while. One document you will be asked to sign is a "Waiver of Hearing" form. Do not sign this form and do not waive the hearing. You will not be penalized in any way by demanding a refusal hearing. While you should absolutely hire an attorney to represent you at a refusal hearing, you are not required to have one. If you can't afford an attorney the court will appoint one, or the public defender will represent you for free (if you qualify). But that attorney will only represent you in court, not at the DMV. A refusal hearing is a civil proceeding that runs separately from the court case. The hearings are usually held at the local DMV or other local non-court facility in the county where you were arrested. The hearing will usually occur within 15 days of your first appearance in front of a judge. The outcome of a refusal hearing will have no impact whatsoever on your criminal case, even if you win the refusal hearing.

If you admit to refusing and waive the hearing, your license will be revoked for a year and, you will pay a fee of $750.00 to the NY DMV. If you appear at a hearing and the DMV judge finds you are guilty of refusing, the penalty is the same as above. What is important to understand is that it is not up to you to explain your innocence at the hearing. The government must prove it's case first. That is why you need a lawyer at this hearing. An experienced DWI lawyer will know the law and be able to effectively challenge the state's case against you.

These are some of the facts the state must prove at a refusal hearing:

1. Legal Traffic Stop

A traffic stop (meaning you were actually pulled over) is "legal" as long as a police officer has a rational reason to stop you. Almost all the time, a police officer will testify that he or she observed your vehicle violating the Vehicle and Traffic Law (VTL). It is usually the police officer's word against the yours. The judge will most likely credit the police officer's testimony over yours, absent other proof the officer is lying. That is a typical scenario. If there was an accident, then there is no challenge to the traffic stop. However, people are often stopped for many other reasons. An example from a recent case of mine involved a client backing out of a parking spot at a strip mall who was stopped while backing out. The police officer stopped my client because of an informant's tip that my client was taking home "a very drunk girl". Because the arresting officer could not testify that he observed a violation of the VTL law (or any law), and the informant's tip was unreliable hearsay, the judge dismissed the refusal case.


2. Probable Cause to Arrest for DWI

Probable Cause in the context of DWI arrests basically means the police officer had a reason to suspect the driver is drunk or has been drinking recently. This is hardly ever difficult for the state to prove at a refusal hearing. In my experience contesting DWI cases, most cops know the "magic bullets" to shoot to prove they had probable cause to arrest. This is what it takes; " I smelled an odor of alcohol on Mr. DWI's breath. His eyes were glassy and bloodshot. He told me he had a "couple drinks" with dinner". At his point in the testimony I can see it in the judge's eyes, we lost. (And this is before we get to testimony about Field Sobriety Testing and Roadside Alcohol Testing) The judge is satisfied there was probable cause to arrest for DWI. Keep in mind ,the foregoing is a very cynical opinion. I always argue that the police officer did not have probable cause to arrest. And I always challenge the police officer's testimony. Once in a great while, a judge will agree with me. A good DWI lawyer knows in his heart that the scenario above should not amount to probable cause and will know how to make an argument at the refusal hearing.

3. Proper Administration of Refusal Warnings

The law says that you can't be found guilty of refusing unless you are warned of the consequences. Often, the police will not warn until after the first indication the defendant is refusing to perform a chemical test. Most of the time, a police officer will read the defendant the warnings off a little card he or she carries with him. In a refusal case the officer will mark down on the paperwork that the defendant was read these warnings and understood them. (This can be difficult to prove when the defendant does not understand English). Believe it or not, I have seen screw ups in this area. In one case an experienced sheriff's deputy confused refusal warnings with Miranda warnings. My client told me he could not recall being read refusal warnings. He did recall the "right to remain silent" (Miranda) warning but not the refusal warning. My client was telling the truth and the deputy admitted it. That refusal case was dismissed.

4. The Defendant Refused

Most of the time in refusal cases, the defendant expressly refuses verbally. But once in a while I get a case where the actual refusal is not so clear. The defendant's refusal must be persistent, meaning the defendant must have been given more than one opportunity to take the test . Once a defendant indicates that he or she will not or can not do the test, the police will administer the warning and ask again. Sometimes a defendant tries, but cannot produce enough breath to activate the machine due to physical disability. If a defendant can not physically do the test, he or she cannot be deemed to have refused. If this argument is going to made, you must have serious proof such as a doctor who would be willing to testify at the refusal hearing and ample medical records.

The foregoing is a very simple breakdown of the law regarding refusal hearings. The case law regarding refusal hearings and refusal issues in general is voluminous. To adequately protect your rights you must have an experienced DWI attorney who knows the law and case law inside and out.