Posted on April 30, 2015 in DUI/DWI
In New York you have a right to
refuse a breath test, but that refusal comes with serious consequences. Refusing a chemical test can lead to penalties
imposed by the Department of Motor Vehicles which are in addition to the
criminal charges pending against you in the jurisdiction where you were
If you are arrested after refusing to take a breathalyzer test, you are
entitled to a “refusal hearing” at the Department of Motor Vehicles. After the hearing, a DMV hearing officer will
determine whether your actions are to be considered a “refusal”. The license suspensions imposed by the DMV if
the driver is not successful at the hearing are severe – one year for a first
refusal, two years for a second refusal, three years for a third refusal, and
four years for a fourth refusal. Unlike drivers who submit to chemical tests,
motorists who refuse may not apply for a restricted license to drive to work.
However, an implied refusal, where
police make the faulty assumption that the driver refused a chemical test, can
often be successfully challenged by an attorney specializing in the defense of
DWI cases. Having a skilled DWI attorney like Kirsten Bennett, greatly
increases your chances of success at a refusal hearing.
When a driver is arrested on
suspicion of DUI/ DWI, he or she is required to provide a sample of their blood
or breath for testing for alcohol content, or a sample of blood or urine if
they are suspected of driving under the influence of drugs (DUI). This is
called the “implied consent” law.
There are some instances where an
implied refusal might be excused or not considered a refusal. For example, if a
person arrested for driving under the influence chooses to take a breath test,
but then is unable to provide a sufficient sample of breath to allow for a
reading, police officers often record this as a refusal, assuming the person is
purposefully blocking the mouthpiece or not blowing hard enough. Often, the
person may be sick or injured and unable to provide a sufficient sample, or the
breath machine may be faulty. In this situation, if a police officer does not
allow a person who chose a breath test to take a blood test instead, and
records it as a refusal, this refusal may be excused.
Another situation where a refusal
may be excused is when the person arrested for DUI / DWI is physically unable
to refuse or consent, or is in and out of consciousness. In addition, a motorist can launch a defense based
on the fact that the police officer failed to issue a proper warning of the
consequences of refusing to provide a blood or breath sample for testing.
The DMV action following a DWI / DUI arrest is governed by 15 NYCRR Part
127, by Article 3 of the New York State Administration Procedure Act, by case
law, and by the Constitutional right to due process. A skilled New York
DWI lawyer knows that there are four critical issues to be determined at a DMV
refusal hearing. Each of these issues must be scrutinized and attacked in
order to prevail at a DMV refusal hearing.
Refusal hearings are considered a civil action, not a criminal action.
Therefore, there are less constitutional protections when it comes to the
DMV. This is why it’s imperative that you should be represented by a
lawyer who is knowledgeable with the DMV refusal hearing process. Call Kirsten
Bennett, Esq. at Bennett & Coppola, LLC, for a free consultation.