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How Refusing the DUI Test Affects Your License

Last updated on: June 15, 2023

By Lebedin Kofman LLP

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. Additionally, the clerk of the court will inform them about the notice for  refusal hearing at their arraignment. 

If you are concerned about how refusing a DUI test may impact your license, it is crucial to seek guidance from our skilled Manhattan DWI lawyer. At Lebedin Kofman LLP, our lawyers work diligently to investigate DUI cases and have helped numerous clients win against DWI charges by providing quality legal advice. Our attorneys can help you navigate the legal complexities involved and assist you in making informed decisions to effectively protect your rights. Contact us today at (646) 663-4430 to schedule a consultation.

What Happens If a Driver Refuses to Take a Chemical Test?

New York has adopted the implied consent law for DUI cases which stipulates that anyone operating a motor vehicle within the state automatically agrees to allow law enforcement to conduct a chemical test of their blood, saliva, or urine to ascertain alcohol levels. Breath tests are required to be carried out within two hours following an arrest, and the same timeline applies to chemical tests following either the arrest or the breath test. The issue of whether a test has been performed within this two-hour timeframe has frequently been a point of contention in DWI cases. Despite the implied consent rule, a driver suspected of DWI retains the right to decline a chemical test.

If a driver chooses to reject the chemical test, their license is promptly suspended. After this, the arresting officer must fill out a report detailing the reasons for the DUI stop and noting the driver’s refusal to undergo a chemical test.

The suspension of the driver’s license could potentially last for a year. If the driver has previously refused chemical tests or has past DWI convictions, the revocation period might extend to 18 months. Moreover, if drivers are found guilty of DWI, they may also be subject to criminal penalties in addition to license revocation.

If you find yourself facing DUI test refusal charges in New York, it is crucial to consult an experienced Manhattan DWI lawyer about your legal options. Given that each case is unique, a thorough examination of the facts is necessary to determine the most effective approach for safeguarding your rights. Schedule a consultation with Lebedin Kofman LLP today.

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 in the video.

DUI lawyer in New York City

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.

Process of License Restoration After Suspension Description
Arraignment Hearing, Joining Programs License suspension occurs at the arraignment. Joining programs like the Drinking Driver Program (DDP) may be required for license restoration.
License Revocation, Conditional License If you lose the hearing or fail to attend, a one-year license revocation may occur. However, a conditional driver’s license may still be granted, contingent on participation in DDP.
Establishing Elements, Challenging the Case Hearings aim to establish elements like reasonable cause, probable cause, refusal warnings, and denial. Attorneys can challenge the officer’s reasons for the stop and the evidence presented.
Scrutinizing Paperwork, Importance of Refusal Examining the paperwork and video evidence is crucial to identifying discrepancies and errors. The report of refusal holds significant importance, especially if the officer doesn’t appear at the second hearing.
Noticing Errors Identifying errors in the officer’s paperwork can be instrumental in winning the hearing.

Is it Possible to Refuse a Field Sobriety Test?

New York law does not require a person to submit to field sobriety tests. Field sobriety tests are tests that include walking in a straight line or following a pen with your eyes and are often used to determine if a person is driving while intoxicated. Being subject to these tests can put the driver in a difficult situation, especially if they fail the test and would need to face the penalties that come with a DWI charge.

There are many reasons why a person might fail the field sobriety tests, such as nervousness or fear about meeting with police officers. Failing a sobriety test can mean that the prosecution has evidence they can use to file a case against you.

Although you do not have to take these tests and may refuse to do so, if an officer suspects that there is probable intoxication, they can still arrest you. However, if you are arrested, the police cannot compel you to submit to a warrantless blood test. You can however be asked to submit to a breathalyzer test if there is probable cause. You could also be subject to penalties if you decline to submit to a BAC testing under New York’s implied consent laws. This implied consent rule explains that you consent to have your BAC test done when you drive in New York as long as your constitutional rights are not violated.

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)
  • Blood
  • Urine
  • Saliva

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.

Call our DUI attorneys in New York today at (646) 663-4430 to learn more about how we can help you. Contact us now to schedule your free consultation.

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