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.
- The police officer had reasonable grounds to believe that you had been driving while intoxicated.
- The police officer made a lawful arrest.
- 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.
- 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.
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.