“Refusal” Hearing Win in Charged D.W.I.

When police stop a driver on suspicion of driving while intoxicated, they often question the person and ask him or her to perform certain standard field sobriety tests.  The police also frequently request the driver submit to a “breath test,” which is designed to determine the individual’s blood alcohol level from a sample of the person’s breath.

In New York, if there is a finding that a motorist unjustifiably refused to submit to a breath test, the D.M.V. will impose a one (1) year suspension of the person’s driver’s license. During that suspension, the person is ineligible for a restricted or conditional driver’s license which would otherwise permit the person to drive to and from work during their suspension period. The refusal can also be introduced into evidence against the motorist if he should go to trial on his D.W.I. charge.

Before D.M.V. can impose this one (1) year suspension, the motorist is entitled to a “refusal hearing” before a Judge, at which time the arresting officer must demonstrate he had a legal basis for stopping the motorist and for requesting he submit to a breath test. Most importantly, the officer must also establish he gave the motorist the required, clear and unequivocal, warning that if the motorist does not submit to the breath test, his or her license will be suspended for one year, irrespective of whether or not the motorist is convicted of the underlying DWI charge.  Unfortunately, many motorists do not take advantage of their valuable right to such a hearing, or give up their right to be represented by an attorney of their choice, because they mistakenly believe they will never win, or feel the cost of attempting to vindicate their rights is not justified.

The reality, however, is that all too often, the arresting officer fails to provide the motorist with the proper warning regarding the consequences of failing to submit to a breath test, and as a consequence, the motorist does not deserve to have their license suspended.  This past week we defended one of our clients at his refusal hearing: he faced both the suspension of his license and the loss of his job. Today we received the Judge’s decision finding, as we had argued, that the officer failed to provide our client with the clear warning of the consequences of refusing to submit to the breath test, to which he was entitled, and so the Judge refused to suspend our client’s license.  This case demonstrates an important maxim: your rights are useless unless you assert them.