DWI Refusal Hearing FAQs

If you’re pulled over for a DWI in New York and refuse to take a breathalyzer test or chemical test, you may be subject to a DWI refusal hearing.  Here’s a quick Q&A about that process:

Question: If I am pulled over by the police in NY, do I have to submit to a chemical test or Breathalyzer test?

Answer: No, you don’t have to take a breath test when the police ask, but there may be consequences to refusing.  New York State’s Vehicle and Traffic Law requires you to take a blood, breath, urine, or saliva test if you are arrested for an alcohol related offense.   This is an “implied consent” law, meaning that if the police officer has probable cause to arrest you for driving while intoxicated, then you consent to taking a chemical test to determine your blood alcohol content (BAC).

In most cases, you cannot be forced to submit to a chemical test, however, if you are involved in an accident that caused injury or death to another person, and you refuse to take a chemical test, the police may get a court order from a judge that allows them to collect a blood sample for testing.  If you submit to a chemical test requested by the police, you also have the right to additional chemical tests taken by a medical professional of your choice.

Question: Who determines if I refused?

Answer: The initial “Report of Refusal” is usually filled out by the arresting officer.  An Administrative Law Judge will then conduct a Refusal Hearing to determine if you refused or not.

To give some further detail on that: within 15 days of your alleged refusal, the Department of Motor Vehicles (DMV) will schedule a Refusal Hearing.  During this period your license will be suspended. This hearing is separate from your criminal case, and there is no license or Hardship privilege for people charged with a chemical test refusal pending the DMV Refusal Hearing. In order to suspend your driver’s license, the court must receive a “Report of Refusal,” which is usually filled out by the arresting officer. This report will include the reason for the car stop, and the evidence as to how, when, and where you refused to submit to a chemical test. Make sure your attorney receives a copy in order to review prior to your Refusal Hearing. If there is no Report of Refusal, your license cannot be suspended for refusing a chemical test.

An Administrative Law Judge will conduct the Refusal Hearing.  As mentioned, the Refusal Hearing is separate from any criminal case against you, and it is not held in a criminal court. Therefore, certain rules of criminal court proceedings will not apply to your Refusal Hearing. There is a lower standard of proof, and hearsay will be admissible, meaning that the statements made by the police officer in the Refusal Report are admissible.

Your failure to testify can be used against you, however.  Everything is recorded and both the Judge and the police officer may question you if you decide to testify. The police officer, if present, will not be represented by an attorney, so this is a good opportunity to have your DWI defense attorney cross examine the officer. In many cases, the police officer will not appear for the first hearing. In this case, the hearing will be adjourned to a future date, and your driving privileges will be restored until the hearing. If the police officer does not appear for the second hearing, the Judge will continue with the hearing based on the police officer’s Refusal Report.

Question: What will the judge focus on in a DWI refusal hearing?

Answer: During your DWI refusal hearing, the judge will focus on four key issues:

1. Did the police officer have reasonable suspicion to believe that you were driving under the influence of drugs or alcohol?
2. Did the police officer have probable cause to make a lawful arrest?
3. Were you given a sufficient and clear warning, prior to your refusal, that any refusal to submit to a chemical test would result in the suspension of your driver’s license for at least one year?
4. Did you then refuse to submit to a chemical test?

If the Judge determines that the answer to each of these questions is “yes,” then your license will be revoked for a minimum of one year.

The only way to obtain some limited driving privileges after a refusal suspension is by obtaining a conditional license or conditional privilege after pleading or being found guilty of an alcohol related driving offense, Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI).

If you are found to have refused (following a hearing process that is discussed above) the consequences are severe.  For your first offense, if you refuse a chemical test, you will face a one-year license revocation, and a fine of $500. For your second and any subsequent offense, or if this is your first refusal but you have been convicted of a DWI in the past five years, if you refuse a chemical test, you will be given an 18 month license revocation and a fine of $750.