Refusing A Chemical Test In New York
In our last post, we noted that due to New York’s implied consent laws, refusing to submit to a breathalyzer or chemical test will almost certainly have a long-lasting impact on your diving privileges, beginning with the arraigning judge suspending your license for fourteen days and direct you to attend a DWI refusal hearing.
Noonan Brown Law will accompany you at the DMV hearing, which is presided by an Administrative Law Judge. This person will have the initial “Report of Refusal” the arresting officer filled out. Based on this report and the testimony of the arresting officer, the Administrative Law Judge will determine if you voluntarily refused a breathalyzer or chemical test. This is a “quasi-judicial” proceeding, meaning the burden of proof is much lower, you are afforded less protections than a criminal matter, and hearsay is admissible.
Although the arresting officer will be called to the hearing, many times they do not show up. If this is the case, a second hearing will be scheduled to give the arresting officer another opportunity to attend. Noonan Brown Law will argue for the temporary restoration of your driver’s license in the meantime. If the arresting officer is absent in the second hearing, the Administrative Law Judge will base their findings on the Report of Refusal.
Assuming the arresting officer is present at the Refusal Hearing, testimony is recorded and affords the DWI lawyers at Noonan Brown Law the opportunity to cross examine the officer. Although the DMV hearing is not a criminal trial, it gives us a glimpse into the strength of the prosecution’s case. If there are donut holes, we can uncover them by asking pointed questions to the officer that arrested you.
The Administrative Law Judge is tasked with answering four questions. Did the police officer have reasonable suspicion to believe that you were driving under the influence of drugs or alcohol? Did the police officer have probable cause to make a lawful arrest? Were you given a sufficient and clear warning, prior to your refusal, that any refusal to submit to a chemical test would result in the suspension of your driver’s license for at least one year? Did you then refuse to submit to a chemical test?
If the Judge determines that the answer to each of these questions is “yes,” then your license will be revoked for a minimum of one year. You may obtain limited driving privileges by obtaining a conditional license after being convicted of Driving While Intoxicated or Driving While Ability Impaired, but it requires enrolling in and successfully completing the Impaired Driving Program, a topic we’ll reserve for a future post.
Of course, this is a crime of money, and the fines can be substantial if you refuse a chemical test. Given the gravity of the situation, now is not the time to go it alone – contact Noonan Brown Law today.
Brett Noonan, Esq. and Chris Brown, Esq. The Binghamton Barristers