Refusals are a whole subsection of DWI law on their own. Someone who refuses the breath or blood test will need 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. Before you make any decisions, speak with an experienced Manhattan criminal attorney.
It Is Possible to Get Your License Back at 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 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, “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 are basically 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.
Our DUI / DWI lawyers in New York have handled thousands of these hearings, and we have won a lot of them.
Lebedin Kofman LLP has been able to win these kinds of cases from every possible angle because we look through all the paperwork and the videos so we can attack a case from every angle. We try attacking the police officer’s reason for the stop, whether or not it was something we thought we could win.
We recently won a case involving this same issue. Our 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 they do 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 halfway there if you did not make an admission to drinking. This is very important throughout the DWI case, and we are sometimes able to win based on this issue.
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 sometimes able to win the hearing just based on that.
We were 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 our 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 word, “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.
Chemical Test vs. Breathalyzer: What’s the difference?
New York’s state law defines a blood alcohol content test (BAC) as “chemical testing.” The term “breathalyzer” is not something that the public is familiar with. It is important to explain the difference between these terms.
There are several types of tests that can all be performed during a DWI investigation.
- Portable breathalyzer test (or “PBT”)
- Driver’s chemical testing
- Breath (breathalyzer)
A PBT is often administered at the scene of a traffic stop. Police officers use this tool to determine if the driver is sufficiently impaired to warrant an arrest or to investigate further. PBT results can be admissible in New York court if the PBT device has been approved by the State and all chemical test refusal warnings have been given.
After an arrest, the driver is usually subject to other chemical tests at the station. A breathalyzer test is the main test for suspected alcohol intoxication. The breathalyzer test, which uses a different machine than the PBT, is considered far more accurate and reliable.
A blood test can be used as an alternative to a breath test. Sometimes, it is used to verify that a driver has given a valid breath sample. Because it is more intrusive and requires a warrant, a blood test is less commonly used than a breath test. Urine tests are less reliable than blood and breath tests and are often used in situations where the driver may be impaired by drugs. The same applies to testing the driver’s saliva.