The DWI Refusal Defense in New York State

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 chemical test.

Those warnings are:

  1. You are under arrest for driving while intoxicated
  2. 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.
  3. 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.
  4. 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 not appear.

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 before trial.

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

At Proto, Sachs & Brown, 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.

Our 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.