THE DWI BREATH TEST REFUSAL CASE
If you refused to do the breath test:
A NYS licensed motorist is deemed to give his/her consent to a breath or bodily fluids test in order to determine the BAC of the Motorist. A Refusal, if proven as persistent, clear, and unequivocal at a DMV Refusal Hearing before an Administrative Law Judge (ALJ) for the Department of Motor Vehicles, causes a minimum six month revocation of driving privileges. A plea of guilty or a conviction to any alcohol related charge (DWI or DWAI) from the same car stop as the Refusal may allow the motorist to enter the Drinking Driver Program and obtain a Conditional license (12 months) for use to, from and during work, child care, medical and dental care for the motorist and members of their household. Additionally, DMV offers a three hour weekly block of time of your choosing for personal matters.
The Refusal Hearing must be made available to the Defendant within fourteen days of the arraignment on the DWI charge. The license is surrendered at the Court arraignment and there is no eligibility for either a Hardship or Conditional license during this period. The motorist is off the road until the Refusal Hearing. If the arresting Officer does not show up at the DMV hearing, the motorist's license is restored until the rescheduled date, probably in two to three months. If the officer appears, the hearing may or may not be concluded on that day. If concluded and the motorist is found by the Judge to have refused to submit to a breath, blood, or urine test, the license is revoked for a minimum of six months. At that point, the only way to get back on the road with conditional privileges is to plead guilty or be found guilty of any alcohol related violation (DWAI or DWI), assuming no prior alcohol charges within the last five years.
This decision is made at a DMV Administrative Hearing, not a criminal court. The Judge can convict you on the Officer's paperwork even if the Officer doesn't show a second time. The standard of proof is "Clear and Convincing" not "Beyond a Reasonable Doubt." If the cop didn't appear the first time, at the next appearance some three months later, whether the cop appears or not, the hearing will go forward.
If the Judge finds that you did in fact refuse to submit to a test after receiving clear and unequivocal warnings, the license will be revoked for six months. If on the other hand, the Judge decides the paperwork, procedure, or testimony was not proper, then the ALJ could decide the case in your favor. Your license would be restored as of that day!
The Refusal Hearing is welcomed by many DWI defense attorneys as an opportunity to examine the state's chief witness, the arresting Officer.
NOTE: Tompkins County DMV Administrative hearings usually take place once a month, on the third Friday, in the afternoon (1:00 PM), at the Cortland County Courthouse.
If your license is revoked for a refusal, you will not be able to get a Hardship License or Conditional License until you either plead guilty or are convicted of any alcohol related charge.