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Consequences Of Refusing A Breath Test

If you refuse to take the test, under New York State Law, at your arraignment, your license or privilege to drive in NYS (if you have an out of state license) will be immediately suspended by the court. Keep in mind that if you refuse the breath test, you are not eligible for a hardship hearing or a conditional license.

The court will give you a date within 15 days to appear at the Department of Motor Vehicles for a hearing. If you fail to appear at the DMV on that date it will be considered a waiver of your right to a hearing and your license will be immediately revoked.

If you attend the hearing it is important that your attorney appear with you so that he may cross-examine the police officer that arrested you. Often times, the District Attorney has not had time to speak to and prepare the officer before the hearing. Therefore, he will be more likely to make a mistake, which will ultimately help your DWI defense.

At the DMV hearing the judge will limit the testimony to the following issues:

  1. 1. Did the police officer have reasonable cause to believe the driver was operating the motor vehicle while in violation of any subdivision of Vehicle and Traffic Law Section 1192?
  2. 2. Was the arrest of the driver lawful?
  3. 3. Was the driver advised of the consequences of refusing a chemical test of his breath, blood or urine in clear and unequivocal language prior to his refusal or any portion thereof such that their refusal would result in the immediate and subsequent revocation of their license or privilege to operate a motor vehicle in the State of NY whether or not they are found guilty of the charges for which they have been arrested?
  4. 4. Did the driver refuse to submit to the chemical test?

The hearing is presided over by an Administrative Law Judge. If all of the issues are established, the driver’s license will be revoked. If one or more are not established, the judge will reinstate the license.

The revocation is effective for six months and the driver will be assessed a $300 civil penalty. If there is a prior refusal within five years of the present refusal or a previous conviction for any subdivision of Section 1192, the revocation is one year and the civil penalty if $750.

If you or a loved one is in need of legal assistance, call DerGarabedian, Nathan, Marino & Rodriguez at (516) 766-1619 or schedule a consultation and review. The initial consultation is free of charge.

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