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How Can Refusing The Breath Or Blood Test Affect License Suspension?


Refusals are a whole subsection of DWI law on their own. Someone who refuses the breath or blood test will have to have a DMV hearing within 12 days of their refusal and arraignment, and the clerk of the court will inform you about the notice for a refusal hearing at the arraignment.

It Is Possible To Get Your License Back On The Arraignment

Your license will be suspended at the arraignment, but you may be able to get it back when you go to this hearing if the police officer does not show up. You are then free to drive and you will have your full driving privileges back until the second hearing.

The police officer will usually not show up at the first hearing, which is why you should definitely attend and be represented by an attorney so that you can get your full driving privileges back.

You Might Need To Join Certain Programs To Get Your License Back

The other issue will be the court. You will get a one-year license revocation and will have to pay to get your license back if you lose at the hearing, or if you default and do not attend. After that license revocation, if you plead guilty to a driving while ability impaired or driving while intoxicated charge, you will get the DDP, “The Drinking Driver Program”, under the terms of your plea.

You will be able to have a conditional driver’s license even if you lose this hearing or default on the hearing and your license is revoked,. However, you will not be able to have a conditional driver’s license if you do not take DDP.

These hearings are very important and basically are for the purpose of establishing that four elements have been met; namely that there was reasonable cause to pull you over; that there was probable cause to believe you were under the influence of alcohol; that the officer properly read you the refusal warnings which they would generally read off a card and that you unequivocally denied taking this test.

I have handled thousands of these hearings, and I have won a lot of them.

An Experienced Attorney Would Be Able To Find Issues In The Case To Ultimately Have It Dismissed Or Have Reduced Sentencing

I have been able to win these kinds of cases from every possible angle, because I look through all the paperwork and the videos so I can attack a case from every angle. I try attacking the police officer’s reason for the stop whether or not it was something I thought I could win.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

I recently won a case involving this same issue. My client was a limo driver who was parked on a Monday at five o’ clock in his work vehicle. He was parked standing in front of a fire hydrant and the police officer’s reason for pulling him over was that he was illegally parked in front of a hydrant so the officer wrote him a ticket.

We actually found out that in the State of New York it is not illegal to stand at a fire hydrant during hours of the day, meaning while it was daylight. We attacked the officer’s reasoning on that front and we were able to win the hearing by showing there was no probable cause for the officer to approach the vehicle and pull the person over.

The next issue is whether or not the officer had probable cause to believe the person was intoxicated. We generally want to attack the first two elements with the most aggression. The second important element is, to look through all of the paperwork, and see if it matches up with what is shown on the video.

The things that officers fill out on the paperwork are often just perfunctory; bloodshot or watery eyes, flushed face, messed up clothes, and the strong smell of alcohol, but then the video will show them filling out the paperwork and the scenario would be completely different.

This is a very important nuance to remember and confront the police officer about if he does show up at the hearing, so we could make arguments on that issue. Often, the police officer on the stand at the hearing may say the person had alcohol on their breath, or they may say that the person made an admission to drinking.

It is as though you are half way there if you did not if you did not make an admission to drinking. This is very important throughout the DWI case, and we are usually able to win based on this issue.

It Is Important To Note Whether You Have Been Read The Refusal Warning And That Paperwork Was Filled Correctly

There is then the issue of whether or not the officer had accurately and correctly read the refusal warnings and whether or not the person had unequivocally refused; which is why the report of refusal is generally the most important part of the hearing.

Police officers usually do not come to the first appearance and they often do not make it to the second appearance either. If the police officer does not make it to the second appearance for the hearing, then the only evidence that would get put into the record against you is this report of refusal. This is why that is the single most important document.

The case could be put aside if we look through it and find that the police officer had made errors in the way they had filled out this paperwork. This actually happens a lot more often than people think, and it would just be a matter of noticing it, making the arguments and then jumping on top of it. We are usually able to win the hearing just based on that.

I was recently at a refusal hearing where the officer did not show up to the second hearing as well, and the ALJ, or the “Administrative Law Judge”, was about to rule against my client However, we then got the documents and noticed the way the police officer had filled it out.

The officer had never actually put the words, “No” in the section where it asked whether the defendant had unequivocally said he would not take the test. We were able to win the hearing because of arguments we made based on just that, because that was the only thing on the record.

Things like this happen all the time and it can be very detailed when it comes to these refusal hearings. That is why you should fight tooth and nail if your license was revoked because a revoked license would generally have a very large impact on you. You also have to pay a lot of money to get your license back, your insurance will go up and you will feel the impact of that for a long time.

For more information on Effect Of Refusing Breath Or Blood Test On Driver’s License, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (212) 500-3273 today.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

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