Chemical Test Refusals in New York

Interviewer: I think it’s because the prosecution leans towards this idea that, “Well, he’s done it before this is why we’re prosecuting him harder now or more harshly now and we don’t want to believe anything.” Is that typical of the prosecution?

Carl Spector: Yes, it is a typical mindset of prosecutors.

The Individual Faces Prosecution by the Department of Motor Vehicles for Refusing a Chemical Test

I would like to expand upon the chemical test refusal hearings because that tends to be somewhat confusing as well. If someone in the State of New York is charged with a DUI and they refuse to take a breath test, they’ll have a separate civil case that would be essentially a civil case. They’re officially prosecuted in the Department of Motor Vehicles for failing to take a breath test.

It Is Advisable to Retain an Experienced Attorney to Defend Both the Criminal and Civil Cases?

When they go to the criminal court for the original criminal case, they’re then informed by paper, “You have to go to the DMV in less than 15 days for a Department of Motor Vehicles refusal hearing regarding the chemical test refusal hearing.”

That is the time when you leave that court to pick up the phone and find a lawyer who knows how to represent people not only in the criminal court but also in the Department of Motor Vehicles’ refusal hearing cases.

If the Police Officer Does Not Appear at the First DMV Hearing, Driving Privileges Are Restored as Long as There Are No Prior Suspensions

Very often, what happens when you go to that very first appearance for the DMV for the refusal hearing, very often the police officer will not appear.

Now, just a few weeks ago I had a case where it was a very first appearance and the police officer did appear for the refusal hearing so we went ahead with the hearing. Very often, probably more than 50%, the police officer will not appear and the person, if they have no other suspensions pending will receive their privileges to drive back.

Because at the arraignment if you had refused to take a breath test at an arraignment and you’re charged with a DUI the judge will suspend your privileges to drive pending prosecution. If you do refuse and you have to go to the DMV for a refusal hearing within 15 days.

When we go in front of the administrative law judge for that refusal hearing and a police officer doesn’t appear the administrative law judge will give you back your privileges. This is as long as you have no other suspensions. That’s one benefit of having an attorney who knows what they’re doing.

If the Police Officer Does Appear to Testify, It is Crucial to Have an Attorney Help Defend the Civil Charge to Avoid a License Suspension

The next step is if the police officer is there the hearing will take place. You really should have an attorney at that first appearance. If the police officer does appear there, you’re going to have to go forward with the hearing unless you ask for a postponement which may be granted.

However, your privileges to drive will be suspended, so while it is always reasonable to ask for the postponement, it’s up the administrative law judge to either grant it or deny it.

If the Police Officer Does Not Appear at the DMV Hearing, the Case Is Rescheduled and Driving Privileges Are Restored

What a lot of people are confused about with the Department of Motor Vehicle refusal hearings is if at the first appearance the police officer doesn’t show up, the case is not dismissed. You simply get your privileges to drive back if you have no other suspensions. The case will be rescheduled. Like I said earlier, it could be 3, 4, 5, or 6 months later.

During that period of time you are permitted to drive. However, when you come back to the DMV for the refusal hearing and the police officer doesn’t show up you don’t automatically win. The administrative law judge will proceed with that hearing. He or she will use the report of refusal to try to establish whether or not it was a valid arrest based on probable cause and whether or not that person did refuse to give a sample at the time that they were asked.

There is a striking advantage to you if the officer doesn’t appear because nobody there to give live testimony and the administrative law judge will only rely on the report of refusal that’s presented.