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What to Expect at a Second DWI Refusal Hearing in New York

If you refuse to take a breathalyzer test of your blood alcohol content when pulled over under suspicion of a DWI in New York, you can be charged with a per se DWI. This means that you are charged with a DWI because of refusing to take the test. Even if you are not found guilty of a DWI, refusing a chemical test is grounds to having your license revoked. After your refusal, you will usually have your first refusal hearing within several days. Often, the arresting officer will not appear for the hearing. This will lead to your driving privileges being returned without the hearing being held.

This does not mean that the charges are dropped. A second hearing will be scheduled later. The date of your second refusal hearing will usually be scheduled within the next three months and the information will be sent to you by mail. This second DWI refusal hearing will establish the key factors of the case to determine if you will have your license revoked.

Issues to Be Determined at the Second Refusal Hearing

Four key issues will be discussed at the second refusal hearing that must be established in order to move forward with the case.

  1. The police officer had reasonable grounds to believe that you had been driving while intoxicated.
  2. The police officer made a lawful arrest.
  3. You were given sufficient warning, in clear and unequivocal language, that refusing a BAC test would result in the immediate suspension and subsequent revocation of your license or vehicle operating privileges whether or not you were found guilty a DWI.
  4. You refused to submit to the chemical test.

During the hearing, the judge will use all the evidence from your case to determine if these grounds are met and if you will lose your license.

What If the Police Officer Does Not Come to the Second Hearing Either?

While some types of cases can be dismissed if the arresting officer fails to attend the hearing, unfortunately that is not always the case. The Administrative Law Judge (ALJ) can conduct the refusal hearing without the police officer appearing in person. The ALJ can review the police officer’s reports, including the Report of Refusal made at the time of arrest, and any other relevant evidence that has been submitted to the DMV. Using the evidence in these reports, the ALJ may still make a finding against the driver and determine that all the criteria discussed above have been fulfilled. In this case, your license can still be revoked.

The only way to avoid the ALJ ruling without hearing the officer’s report in person is by requesting an adjournment to subpoena the police officer for purposes of cross-examination. If the officer fails to respect the subpoena, only then are the charges dropped.

In general, second refusal hearings are quite short, especially if the Report of Refusal has been filled out properly. This is because it is very difficult to contest having your license revoked under implied consent laws in New York. If you want to get charges dropped, it is very important to get an experienced DWI lawyer to help you build your case based on the available evidence.

Contact Us

If you have been charged with a DWI after refusing to take a Breathalyzer test in Nassau County, consider calling me, Jason Steinberger, at 718-585-2833 to represent you. I would be happy to fight to get the best possible outcome of your case and if possible help you keep your license. You can contact me 24/7 to discuss your options.

Can a Refusal Hearing Be Postponed in New York?

If you have refused to take a Breathalyzer test in New York, you will be required to go to a refusal hearing in front of an Administrative Law Judge. These hearings are automatic. It does not matter if you have been formally charged or convicted of a DWI. Simply refusing to take the chemical test will trigger a refusal hearing with the Department of Motor Vehicles to determine if your license will be revoked.

When and Where Will Refusal Hearings Be Held?

Normally, refusal hearings are scheduled within two weeks of your DWI arrest in New York and you will be required to attend. Every driver charged with a refusal to take a Breathalyzer test when requested by a police officer has the right to an attorney. You should make sure to prepare with your attorney ahead of the hearing. The hearing will be held in front of Hearing Officers, also known as Administrative Law Judges.

Refusal hearings are held in the local Department of Motor Vehicles (DMV) office. In Nassau County, the biggest DMV office is in Massapequa at 927 Carmans Road. You will be told which DMV office your hearing will be located. It will usually be determined according to where your arrest took place.

Postponing Your Hearing

Usually, it is best to try to attend your hearing when it is originally scheduled. However, if you have a good reason to adjourn (or postpone) the hearing, you can apply to have it rescheduled. To attempt to be given an adjournment, you must contact the Hearing Officer responsible for your particular hearing, or contact the New York Safety Hearing Bureau or the Division of Vehicle Safety.

There are three requirements that must be met in order for your postponement request to be approved:

  • The DMV must receive your request at least 7 days before the original hearing is scheduled.
  • You have not asked for a postponement before.
  • Your request has a good cause.

A request to adjourn the refusal hearing for a later date is completely discretionary. That means that postponement is not guaranteed. However, if your reason is real and urgent, requests may be approved.

If your postponement is approved, another hearing will be scheduled. This date cannot be changed. Approving your adjournment does not lift the suspension of your license. The suspension pending the results of the refusal hearing continues until an Administrative Law Judge hears your case. Additionally, any added suspension time will not be credited towards any revocation period ultimately imposed by the DMV for the chemical test refusal because you requested the delay.

Get the Support You Need at Your Hearing

Although you can attend these hearings alone if you prefer, it is very helpful to have an attorney to present your case. There are only very limited ways to avoid having your license revoked after refusing a chemical blood alcohol test in New York. Only an experienced DWI lawyer will know how to fight for your case in a way that gives you the best possible chance to keep your license.

Contact Us

If you refused a Breathalyzer test in Nassau County and risk having your license revoked, contact me, Jason Steinberger, at 718-585-2833 to discuss your options. I have years of experience as a DWI lawyer and will fight for the best outcome to your case. Contact me anytime for a consultation on your case, free of charge.