The DWI Administrative Refusal Hearing
In New York State, you are deemed to have given your consent to a breath,
blood, or urine sample to determine your Blood Alcohol Content (BAC) at
the time of a
DWI arrest. You may, however, refuse to consent to a BAC test. In fact, the
police department and State Police are required to read you standard "Refusal
Warnings" outlining the consequences of a refusal to submit to a
Those warnings are:
- You are under arrest for driving while intoxicated
- A refusal to submit to a chemical test, or any portion thereof, will result
in the immediate suspension and subsequent revocation of you license or
operating privilege, whether or not you are convicted of the charge for
which you are arrested.
- If you refuse to submit to a chemical test, or any portion thereof, your
refusal can be introduced into evidence against you at any trial, proceeding,
or hearing resulting from this arrest.
- Will you submit to a chemical test of your (breath/blood/urine) for alcohol?
or (will you submit to a chemical analysis of your blood/urine for drugs?)
These warnings should be read to you and the Officer will usually ask you
to initial a form with the warnings. One does not get to pick what type
of test they would like to take for a BAC reading, but the warnings must
be conveyed in
clear and unequivocal language.
A DWI Refusal Hearing will be held at the Department of Motor Vehicles
within 15 days of the arraignment on the DWI charge.
The license will be surrendered to the Court at arraignment and there is
no eligibility for either a Hardship or Conditional license during this
15 day period from the Court or DMV. The Officer and the driver must appear
at the scheduled
Refusal Hearing at the Department of Motor Vehicles .
- If the driver fails to appear, the Refusal Hearing is deemed to be waived
and the mandatory civil suspension takes effect.
- If the Officer fails to appear the driver's license is restored until
the rescheduled date.
At the hearing if the driver is found to have refused to submit to a breath,
blood, or urine test for the DWI, the license is revoked for one year.
Getting Your License Back
The only way to get your driver's license back with conditional privileges
is to plead guilty or be found guilty of an alcohol related violation
(DWAI or DWI) assuming no prior alcohol charges within the last five years.
After a guilty finding the driver can enter the Drinking Driver Program
and obtain a Conditional license (12 months) for use to, from and during
work, child care, medical and dental for the motorist and members of the
household. Additionally, DMV offers a three hour weekly block of time
of your choosing for personal matters.
A DMV Administrative Refusal Hearing, not a criminal court, The Judge can
convict you on the Officer's DWI paperwork even if the Officer does
The standard of proof is "Clear and Convincing" not "Beyond
a Reasonable Doubt".
If the Judge finds that you refused to submit to a test, your license will
be revoked for one year. If, on the other hand, the Judge decides the
paperwork, procedure, or testimony was not proper, then the ALJ could
dismiss the case. The license would be restored.
The Refusal Hearing is important to our
Criminal Defense DWI lawyers since it is an opportunity to cross examine the police officer
Many times our clients request a transcript of the hearing testimony to
use at trial. Unlike a civil case depositions are not taken in a criminal
case this however is an opportunity to get as much information out of
the Officer about the arrest. In most cases this is an advantage for the
New York State DWI Lawyer. Our DWI lawyers are always focused on providing
the best possible defense and aggressively protecting your rights.
Legal Help from Our Westchester County Criminal Defense Attorney
Riebling, Proto & Sachs, LLP we have worked with clients in DWI refusal cases. The hearings are an
important part of and DWI criminal defense and should be attended. In
most cases the client has nothing to lose and everything to gain from
fighting at a refusal hearing. Refusal hearings are generally conducted
in the County of the arrest.
Westchester County DWI attorneys will defend these matters in any County in New York State including Westchester,
Orange, Putnam, Dutchess, Rockland and the Bronx. It is important to act
quickly to prepare the defense and be ready for the hearing as the hearing
will be held within 15 days of arraignment.
Recently our attorneys represented a client at a DMV Refusal Hearing in
the City of Yonkers, Westchester County. The State Trooper testified but
did not demonstrate that the driver was adequately notified of the consequences
of a refusal. Our DWI defense attorney immediately made an application
to the ALJ to dismiss the case and that application was granted. The client
walked away with his license and none of the consequences of a DMV Refusal
including financial penalties.
If you have been arrested for DWI in New York State , you need an skilled
NY attorney. Contact our office to discuss the defense of the case and
your options to proceed. We are available for a free consultation for
all cases and can explain the DWI Refusal Defense in New York State and
how it relates to your case.