3 Things You Must Remember if You Refuse a Breathalyzer
If you are pulled over for drunk driving in New York, you most likely will be given a breath test. You are not required in the state of New York to take the breath test, and you can refuse. However, if you do refuse a breath test when pulled over for a suggested DWI, you will be facing some of the following resources.
1.) Breath Test Refusal
New York is an implied consent state. If you are charged with a DWI or a DUI, which are essentially the same thing, and you refuse to take a breath test, the judge at your arraignment will suspend your driving privileges while the case is pending. There are conditional licenses and hardship licenses that we could talk about, but if there is a refusal, there are no hardship licenses. You will receive two dates; one to come back on your criminal case and another one to appear at the Department of Motor Vehicles for a refusal hearing. A chemical test refusal hearing will be held within 15 days of your arraignment in front of the judge.
- Your license will be suspended while your case is pending.
- If you refuse a breath test, you will not be eligible for a hardship license.
- You will have a chemical test refusal hearing within 15 days of seeing the judge.
2.) Chemical Test Refusal Hearing
In New York, if you’re charged with a chemical test refusal, there will be a hearing that is held. You should attend that hearing because if you don’t you’ll have waived it and you lose. Very often a hearing is held and I’m present during those hearings and have the opportunity to cross examine the police officer. If the administrator of law judge finds you are responsible for that chemical test refusal that judge will recommend a suspension of at least one year and you’ll have a civil penalty of at least $500. You have the right to appeal that determination. I have done appeals for chemical test refusals.
One of the most critical things about the chemical test refusal appeal is that you must order the transcripts from the hearing and make sure that those transcripts get to the Department of Motor Vehicles Appeals Bureau. Furthermore, you must fill out a form and file that with the Department of Motor Vehicles Appeals Bureau so that they are aware you are appealing. One of the little known facts about the appeal process is that you are entitled to ask for a stay or a stoppage of the suspension that was just imposed upon you if you are found responsible for the chemical test refusal while the appeals process is going on. The other little known fact is that it only costs $10 to appeal a chemical test refusal hearing.
- If you are found to have refused a chemical test you can face one year of license suspension and a fee of $500.
- You can appeal the decision of the chemical test hearing by ordering the transcripts of your hearing, and notify the DMV that you are appealing by filling out a form.
3.) DMV Retaliation
In the State of New York, if you’re charged with a DWI or DUI and there’s a refusal, first of all there’s one element of whether or not there was a refusal at all. If the police charge you with having refused, in the outer boroughs, up in Rockingham County or Orange County they’ll give you a summons for it. In the City of New York, there is not a separate summons for it because it’s not a criminal offense. It is prosecuted at the Department of Motor Vehicles. There’s something called a chemical test refusal hearing. That hearing will be held within 15 days of your arraignment, which is when you first appear in front of a judge.
Very often at that first appearance you appear and the police office does not appear and there is no hearing that’s held. If the police officer does not appear at that first appearance, your case does not get dismissed. However, if you have no other suspensions for any other reason, the judge or the administrative law judge actually, will reinstate your privileges to drive in the State whether you are an in-state driver or an out-of-state driver. Then the case will be rescheduled. You won’t know what the new date is at the time that you appear. It goes to Albany and takes approximately six to ten months for a new hearing to be generated. During all of that time, you’re fighting your criminal case. You have to manage, with your attorney, both those cases at the same time. Be aware that the Department of Motor Vehicle case is a civil case. It doesn’t have the same rules as a criminal case. However, there are serious consequences to being found responsible for a chemical test refusal such as penalties, fines, and suspensions of your driving privileges. Those chemical test refusal hearings should be taking seriously.
- You will be given a summon for a refusal in the outer counties of NYC.
- In NYC you will be prosecuted and given a hearing for a refusal at the DMV which is called a Chemical Test Refusal.
- If you have no other driving suspensions, the administrative law judge will allow you to drive.
- This charge is an entire different case from your DWI, and will be handled separately
If you were caught drinking and driving, it is important to hire the best attorney you can find. Let our experienced Criminal Attorney, Carl Spector shield you from a criminal record.