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
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
At the DMV hearing the judge will limit the testimony to the following
- 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. Was the arrest of the driver lawful?
- 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. 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 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.