THE DMV REFUSAL HEARING
When stopped by the police they may ask you to blow into a hand held alcohol sensor while in the field. A positive reading on this device is grounds for an arrest. A failure to submit to this field test can be a two point violation on your driver abstract with no additional penalties. The NYS Health Law, Section 59.5 (b) requires a 15 minute waiting period before submission in order to assure that mouth alcohol has dissipated and the sample the device is reading is essentially alveolar in composition (59.4a2). This fuel cell device is not to be confused with the Breathalyzer machine located at police headquarters.
A failure to submit to the Breathalyzer device, be it the Datamaster at most NYS Town and Village Courts and the Westchester County Police or the AlcoTest MK111 at State Police Barracks or the Intoxilyzer at some NYS locations, if sustained at a separate DMV Refusal Hearing (see more under this title) will result in a minimum one year n for revocation your operators license and 18 months for a CDL.
The test must be offered within two hours of arrest. Once two hours has passed there is no legal requirement to submit, so do not submit despite threats you’ll be here the whole weekend (which you won’t). Remember, the machine reading is what could convict you of a crime so what is the big deal about sitting in a cell for a few hours.
If you didn’t submit to a request for blood, breath, or a urine sample within two hours of your arrest your NYS driver’s license or your sister state license’s privilege to drive in this state will be suspended for a maximum of fourteen days from the Defendant’s arraignment in the local court whose jurisdiction includes the arrest site. If it is more than two hours since your arrest when asked to submit, do not submit as it is outside the time frame and you do not have to give a sample. Understand, the carstop itself is not the arrest time but the time the handcuffs are put on or they put you in a patrol car and restrict your movement. Keep track of the time!
If charged with a Refusal, the court will have you surrender your license (or out of state privileges) and will assign you to attend a DMV Refusal Hearing date within fourteen days. In Westchester County located at 1 Larkin Plaza across from the Metro North Yonkers train station. They are located on the second floor over DMV. Hearings are conducted Mondays and Wednesdays at 1 PM, There is NO license or Hardship privilege available to one charged with a refusal pending the DMV hearing. Some criminal court judges won’t even let you drive your car home after arraignment so bring a driver.
In order to suspend your operating privileges the court must have a “Report of Refusal” normally authored by the arresting officer. Make sure your attorney (and/or you) get a copy in order to review the reason for the car-stop and the evidence as to how, when and where you purportedly refused. No Report of Refusal = no suspension.
The DMV Hearing is not in a criminal court and the rules of evidence do not apply. Hearsay is allowed. Your failure to testify can be used against you. However, when considering whether to testify, remember that everything is recorded and the cop and Judge may both question you if you decide to “take the stand”. The transcript will undoubtedly make it’s way to the criminal court either at hearings or trial. For that reason I normally do not have a client testify so the client is not locked into a “story” while the cop is!
There are three issues that the NYS DMV Administrative Law Judge (ALJ) will focus on. 1) Was there a valid reason to stop the vehicle? 2) Were clear and unequivocal warnings issued to the motorist? 3) Did he/she refuse to submit a sample of blood, breath or urine? If the ALJ decides Yes on all of those questions, your license will be revoked for a minimum of one (1) year. The only way to get back on the road with conditional privileges for the one year revocation will be to plead guilty or be found guilty of any alcohol offense, DWI or DWAI. By not blowing you may stand a better chance of getting an offer to the reduced charge of DWAI as the DA only has the cop’s opinion testimony as to how intoxicated you may have been, especially since you would not have made admissions that you had a dozen beers. (See Surviving the Car Stop). That may put an entirely different perspective on one’s approach to the criminal charge that is pending. If you plead to a Driving While Ability Impaired, (DWAI), a traffic infraction, or Driving While Intoxicated (DWI) and were able to enter the DDP, the Drinking Driver Program, attend school for seven (7) weeks at two (2) hours weekly, you would be eligible for conditional privileges (assuming no priors w/in 5 years) allowing one to drive to/from and during work, travel to an accredited school, take your child to a child care facility, for court appearances, the DDP School, three hours personal time weekly, and medical and dental for you and members of your household.
IMPORTANT: a CDL, a COMMERCIAL DRIVER’S LICENSE, IS REVOKED if convicted of ANY REFUSAL, even if you were driving your family car when stopped. If your a trucker who refuses to submit a breath blood or urine sample you will be out of work up to 18 months as a conditional license is not good for taxis or commercial vehicles. We may be able to get you back on the road with conditional privileges after a plea to any alcohol related offense but only to drive non-commercial vehicles.
Feel free to call our toll free number, 1-800-HAROLD Dee (800-427-6533) for a free consultation. We have been representing motorists for over thirty years and enjoy a complaint free record with the NYS Bar. Allow us to try to help!
Call us for a FREE Consultation 1- 800-Harold Dee (800.427.6533) or call local (914.241.7963)