New York DWI Refusal Hearings: What if the cop doesn't show?

Another rant against the tyranny of drunk driving laws.

If the cop that arrested you for DWI doesn't show up for the first scheduled New York DMV Refusal Hearing the judge will adjourn it. That means it gets re-scheduled and very often, months will go by before the next hearing. The judge will not dismiss the refusal case because the cop did not show, period. (Although, I know that some judges wish they could dismiss the case because the law is fundamentally unfair and unconstitutional, despite what the NY Court of Appeals says).

Why should anyone really care about this? After all, aren't we keeping drunks off the road and making the world safer for our children? The answer is a resounding NO! I would love to explain why now but I am trying to stay focused here.

Here is a story about a dude named Dale F. Gray. I don't know anything about his case other than he allegedly refused to do a breath test. So of course, he faced a hearing at the DMV to decide if his license should be revoked. Well Dale hired himself some smart mouthed attorneys who actually cared about Dale's constitutional rights. (A good quality in a lawyer). I guess back in the day, the practice was to dismiss refusal cases if the cop didn't show. But that all changed back in 1988 thanks to Dale and his lawyers. Dale's refusal hearing was adjourned because the cop didn't show. Then the cop didn't show again and the judge did something that made Dale's lawyers mad. The judge revoked Dale's license because he used the no show cop's report as evidence to support the refusal charge. Dale's lawyers thought the judge had no right to do this because they never got a chance to question the cop. You can't talk to a piece of paper right? Without getting in to the 5th amendment and stuff just think about this;  A cop can write down whatever he wants to. Oh, but a cop would never lie or make stuff up right?

Well Dale's case made it all the way up to the Court of Appeals. He won the first round of appeal, but lost at the top.  I've read the case a couple of times and it really brings me down.  The opinion totally disregards the constitutional problem with what the Judge in Dale's case did. It cleverly supports its holding with some crafty and clever gobboly gook. I should note however that former Chief Justice Kaye's decent hits the nail on the head which makes me feel a little better. Matter of Gray v. Adduci 73 N.Y.2d 741 (1988)

The truth is that cops could care less about showing up at refusal hearings. They just don't care. That's because they know the poor bum they arrested will probably lose anyway if they don't show. Because of Gray,  it's perfectly fine for the judge to rely solely on the paperwork when making a decision. Unless a cop can rake in some overtime by showing up for a hearing, there is good chance he will blow it off. Plus, what cop do you think wants to be questioned by some smart mouthed defense attorney if he doesn't have to be. I also have a sneaking suspicion that the practice of not showing up is sometimes encourage by prosecutors who don't want the pain in the ass defense attorney gathering a little pre-trial discovery.

Finally, and as noted in Gray,  the defendant has the right to subpoena a cop for a refusal hearing. So if you really want the cop to show you can subpoena him. This may or may not be a wise decision depending on your specific case. And if the cop doesn't respond to the subpoena, you can still lose.