New York DWI Refusal Hearing & DMV

What is a Refusal Hearing

Whether it is the correct or incorrect decision, should you refuse to submit to a chemical test, such as to the intoxilyzer, your license to drive in New York State will be revoked for one year. Having said that, within fourteen days of your arraignment where you are charged with Vehicle and Traffic Law 1192.3, the Department of Motor Vehicles (DMV) will schedule a Refusal Hearing. A separate hearing from your criminal case, an Administrative Law Judge oversees the case where the standard is "Clear and Convincing Evidence." At this hearing, the judge will make a determination as to whether or not you knowingly refused.

The Significance of a Refusal Hearing

Although distinct from your criminal case and misdemeanor or felony DWI charge, A DWI Refusal Hearing is a significant piece of the DWI case. Not only can you loose your license for a year, be fined $500 and get assessed $250 for three years by the DMV, but prosecutors can use your refusal at your criminal DWI trial. In fact, the law permits assistant district attorneys to use your refusal as "consciousness of guilt" against you. Certainly, giving prosecutors an additional weapon in their arsenal is not something you should do casually.

What Happens if the Police do not Show Up

Generally, if the police officer does not show on the first date, the judge will return your license until you are given a date in the future. Upon returning a couple of months later, the police officer will have the opportunity to appear again. If he or she fails to return again, a judge can return your license or make a ruling based on refusal documents supplied by the police department.

Do You Need Legal Counsel at Your Refusal Hearing

Going to a Refusal Hearing alone is simply foolish. There is really no other way to state it. Although an Administrative Law Judges can make their decisions merely on the papers provided by the police, if the officer shows up you will have a tremendous opportunity to cross examine him or her. More importantly, not only will a record be made of the testimony, but no prosecutor will present to make objections or defend the police officer. In New York City, prosecutors often do not want officers to show up and testify for this reason.

An experienced criminal defense attorney will be able to lock a police officer into testimony that is potentially damaging to the prosecution's case. In some cases, prosecutors may not even be aware that the officer showed up at all. If there was ever a "free" shot at the police and law enforcement where your case can be enhanced and law enforcement's case can be hurt, this is it.

Despite the fact that a Refusal Hearing is ripe for this cross examination, the end result, i.e. the potential revocation of your license, is often difficult to avoid because the standard is well bellow the criminal law of "beyond a reasonable doubt." While the odds are more difficult than in a criminal court, the information you gain, even if you do not preserve your license, is too significant to disregard.

Call the New York City refusal hearing attorneys and former Manhattan prosecutors at (212) 312-7129 or contact us online today.

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