The DMV Refusal Hearing

August 23, 2009 06:17 PM | Arrest, DWI DWAI

You've been stopped by the police and suspected of Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI). The police have now asked you to submit to a Chemical Test, usually a breathalyzer (blowing), urine or blood test to determine your Blood Alcohol Concentration (BAC). You have refused to take the test, been arrested and arraigned in Court. What happens next?

At arraignment, the Court advises the defendant and counsel of the date and time of the Refusal Hearing. The hearing must be conducted within 15 days of the date of arraignment. The Refusal Hearing is conducted at a local DMV office and presided over by a DMV Administrative Law Judge.

At the Refusal Hearing, the following four (4) issues are addressed:

1. Did the police officer have reasonable grounds to believe that the defendant had been driving under the influence or while his/her ability was impaired,
2. Did the police officer make a lawful arrest,
3. Was the defendant given sufficient warning, in clear or unequivocal language, prior to the refusal, that the refusal to submit to the chemical test would result in the immediate suspension and subsequent revocation of the defendant's license or privilege to operate a motor vehicle in New York.
4. Did the defendant, after reasonable grounds have been shown, following a lawful arrest, and following sufficient warning of the consequences, then refuse to submit to a chemical test.

Following the presentation of evidence and cross examination, the Administrative Law Judge may render an immediate decision or reserve decision. If the Administrative Law Judge determines that all four (4) issues have been affirmatively proven, the defendant's license or privilege to operate a motor vehicle in New York State will be immediately revoked for a period of either one (1) year or eighteen (18) months depending upon certain factors.

If the Administrative Law Judge determines that the evidence failed to establish ALL four (4) factors, the temporary suspension shall be immediately terminated.

A person in this position should always retain counsel for the Refusal Hearing. Often, there are one or more elements that a skilled Westchester criminal defense lawyer can attack in an effort to avoid the mandatory revocation.

The Consequences of Refusing to Submit to a Chemical Test (Refusing to Blow)

March 4, 2009 01:23 PM | DWI DWAI

New York Criminal Defense Lawyer

John Pettinella often represents clients who refuse to take a breath test or other chemical test in connection with a Driving While Intoxicated (VTL 1192.2, 1192.2a, or 1192.3 among others) or Driving While Ability Impaired (VTL 1192.1) charge. The machines often used are the Intoxilyzer in New York City or the DataMaster in Westchester County.

The question clients often ask is “What are the consequences of refusing to submit to the test”? In New York State, there are no criminal consequences, meaning you cannot be charged with a misdemeanor or felony for the refusal itself. There are, however, consequences to your pending Driving While Intoxicated or Driving While Ability Impaired case that result from a refusal.

Specifically:

1. The refusal can be introduced at trial as “consciousness of guilt evidence”.
2. Your license to drive or privilege to operate a motor vehicle in New York (if you are an out of state licensee) will be immediately suspended pending the prosecution of your case.
3. Pending a Refusal Hearing which is conducted at DMV offices, your license to drive may be separately revoked for a period of time irrespective of the outcome of your underlying DWI or DWAI case.

The arresting officer is required to properly warn a person of the consequences of refusing to submit to a chemical test. The chemical test itself is the result of either an onsite breath screening or following an arrest. If the person refuses, the Court is advised at the arraignment and the defendant’s license is immediately suspended pending a Refusal Hearing and/or the outcome of the case. The defendant is then advised of the Refusal Hearing date.

The issues surrounding a Refusal Hearing will be addressed in a separate article.

The above consequences beg the question, “Should I refuse to submit to the test or not”? This is a complex question that cannot be answered in a short article. As with all serious legal questions, you should contact a qualified

New York Criminal Defense Attorney

DWI and DWAI in New York

November 11, 2008 03:52 PM | DWI DWAI

DWI and DWAI are two of the most common charged offenses in New York affecting teens, baby-boomers, blue and white collar workers. The consequences of a DWI or DWAI conviction are far reaching and can range from a low fine and temporary driving suspension to extensive fines, a license revocation and jail time.
Recently enacted DWI and DWAI statutes can be confusing and accordingly, it is important for any individual charged with one of these offenses to consult the services of an experienced Westchester County criminal defense attorney or New York City criminal attorney to navigate through the maze of statutes that cause these individuals to be subjected to such things as license suspension for refusing to take a chemical test, mandatory screening for substance abuse, treatment programs and potential probation or jail time.
In New York, the statutory blood alcohol content limit is .08%. Studies show that depending on your health, height and weight, that level is easily achieved with just a few drinks. Further, it is important to note that DWAI and DWI charges stem from a person's "operation" of a motor vehicle. Operation may be demonstrated by simply being observed sitting in the driver's seat with the keys in the ignition.
In these situations, it is important to retain the services of a skilled

Westchester County criminal defense attorney

New York City criminal attorney

to ascertain the strength of the charges, the ability to challenge a breathalyzer test or chemical test, and the reason for the stop by the police.
Future articles will focus on the different elements of the DWI or DWAI arrest.