Arrested For DWI And Refuse To Take A Chemical Breath Test? What Happens Next…
by Greg Colavecchia
In New York, if a police officer has reasonable grounds to believe that you were driving while intoxicated, driving while your ability was impaired by alcohol, or driving while your ability was impaired by drugs (each charge found in VTL § 1192) and places you under arrest for any such violation, the officer will request that you submit to a chemical breath test to determine your blood alcohol content. Any person who operates a motor vehicle in New York is deemed to have given consent to a chemical test. However, you do have the option of refusing to take the chemical breath test. The down side? There are harsh civil and administrative consequences to refusing a chemical test separate and apart from your criminal charge. While the general consensus seems to believe that refusing a chemical breath test is in a person’s best interests because it makes it more difficult for the prosecution to prove you guilty of the criminal charge, it is important to recognize and evaluate these civil and administrative penalties prior to determining whether to refuse a chemical breath test. This article is meant to provide a brief synopsis of what happens to you, and most importantly your driver’s license, after you refuse a chemical breath test.
When you are arrested for Driving While Intoxicated and you are asked to submit a chemical breath test, the police officer is obligated to provide you with your “refusal warnings.” That is, the officer is obligated to tell you that refusing to take the test will result in the immediate suspension and subsequent revocation of your driver’s license whether or not you’re are found guilty of the criminal charges for which you are arrested. In simpler terms, even if you are found NOT GUILTY of the criminal charges, you may still have your driver’s license revoked as a consequence of refusing the chemical breath test. This is a civil consequence handed down by the DMV.
How does this happen? Once you are arrested for DWI and refuse to take a chemical breath test, you will appear in criminal court for your arraignment. At arraignment, the judge will inform you as to what you have been charged with in criminal court and is also obligated to immediately suspend your driver’s license or operating privileges within New York State pending a DMV Refusal Hearing. Upon suspending your license, he will provide you with a document referred to as the “Report of Refusal,” which is the allegation made by the police officer that you refused to submit to a chemical breath test. The judge will then give you notice of the date, time, and location of the DMV Refusal Hearing which will be scheduled within 15 days of that criminal court arraignment. This DMV Refusal Hearing is a civil and administrative proceeding which is separate and apart from your criminal case.
At the DMV Refusal Hearing, the police officer will be summoned to testify about the facts of your case, including your refusal to take a chemical breath test. The police will have to satisfy four elements at the DMV Refusal Hearing. Those four elements are:
- Did the police officer have reasonable grounds to believe that such person had been driving in violation of any subdivision of VTL 1192?
- Did the police officer make a lawful arrest of such person?
- Was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person’s license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made?
- Did such person refuse to submit to such chemical test or any portion thereof?
Notably, the hearing officer presiding over your DMV Refusal Hearing must only be convinced of these elements by a “preponderance of the evidence,” a far lower standard than the burden at a criminal trial, which is to prove your guilt beyond a reasonable doubt.
If all four elements have been established to the satisfaction of the hearing officer, your license will be immediately revoked at that hearing for one year if this is your first offense. You may also be fined $500. If this is your second refusal or your first refusal but you have been convicted of DWI within the past five years, your license will be revoked for 18 months and be fined $750. Alternatively, if the hearing officer finds any one of the elements to not have been met, the hearing officer will immediately terminate the suspension placed on your license for the refusal. The difference between those two results could mean the difference between whether you drive to work tomorrow or not. It is extremely important that you hire an experienced criminal defense attorney prior to your DMV Refusal Hearing. Although separate from your criminal charges, the civil and administrative penalties of a refusal can be just as consequential to a person’s life and livelihood.
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