Refusal Hearings Issues In New York State – DMV
In New York most drivers that encounter the police within the context of driving while intoxicated are asked to take a breath test. Sometimes the police have you perform a breath test in the street. If you refuse that “street” breath test you should not be deemed to have refused because that is not the “official” breath test. The official test is administered at the police station. If you refuse to take the test at the police station the police will report to the court, the prosecutor and the DMV that you “refused” to take the test. As a result of that refusal your drivers licensed will be suspended. You are then entitled to a hearing at the Department of Motor Vehicles (DMV) within 15 days of your arraignment to determine if you “lawfully” refused and whether your suspension should be lifted or imposed. If you waive or fail to appear at this DMV hearing your suspension by the DMV will be imposed. However, you have a right to appear at this hearing, with an attorney of your choosing to defend yourself and to fight this non-court suspension.
The hearing shall be limited to the following issues:
(1) Did the police officer have reasonable grounds to believe that you had been driving while intoxicated;
(2) Did the police officer make a lawful arrest;
(3) Were you given sufficient warning, in clear or unequivocal language, prior to your refusal that the refusal to submit to the breath test would result in the immediate suspension and subsequent revocation of your license or operating privilege whether or not you are found guilty of the charge for which the arrest was made; and
(4) Did you actually refuse to submit to the breath test.