Michael Kramer, Attorney at law

1311 Mamaroneck Ave
Suite 340
White Plains, NY 10605
mk@michaelkramerlaw.com

Call for a Free, 20-min,
Traffic Ticket Strategy Session

(914) 709-7161

Michael Kramer, Attorney at law

THE FACTS

You are stopped by the police and suspected of Driving While Intoxicated (DWI) or Driving While Ability is Impaired (DWAI). The police ask you to submit to a chemical test, usually a breathalyzer to determine your blood alcohol concentration (BAC). You refused to take the test. You are arrested and have to appear in Court for your arraignment. At arraignment the Court will suspend your license and advise you and your DWI attorney of the date and time of your Refusal Hearing.

WHEN AND WHERE IS THE REFUSAL HEARING

This hearing must be conducted within 15 days of the date of your arraignment. In Westchester County, it is conducted at the Yonkers DMV office, Westchester County, on either a Monday or Wednesday at 1:00 p.m. It is presided over by a DMV Administrative Law Judge.

FOUR ISSUES ARE ADDRESSED AT THE REFUSAL HEARING

  1. Did the police officer have reasonable grounds to believe that you were driving under the influence of alcohol?
  2. Did the police officer make a lawful arrest?
  3. Were you given sufficient warning, in clear and unequivocal language, prior to your refusal, that any refusal to submit to a chemical test will result in the immediate 
suspension and subsequent revocation of your driver’s license?
  4. Did you then refuse to submit to a chemical test?

The question which often occurs is whether a refusal hearing is winnable? That is, can you and your DWI attorney convince the Administrative Law Judge that the refusal process was defective in some way and therefore your license should not be revoked (for one year).

THE DECK IS STACKED AGAINST YOU

In all honesty, the refusal hearing is rarely winnable. The Administrative Law Judges work for New York State and specifically the DMV. Although he or she wants to appear impartial, in reality they are not. In almost all circumstances they find that you in fact legally refused and should suffer the consequences whether you have a valid defense or not.

DEFENSES AT A REFUSAL HEARING WHICH WERE REJECTED

  1. Persons who do not speak English and cannot understand their rights.
  2. Persons who are deaf.
  3. Persons who did their best to blow into the machine which did not register because of their medical condition.
  4. Persons who were never read the refusal warnings.
  5. Persons who initially refused but shortly after, changed their mind.
  6. Persons who requested a particular test, blood rather than breath.

REASONS TO PARTICIPATE IN A REFUSAL HEARING

Despite the deck being stacked against you, there are two major reasons to attend and participate in a refusal hearing:

  1. In approximately 30% of the cases, the police officer(s) will fail to show up at the hearing. In that instance your driving privileges will be restored pending the adjourned date of a new refusal hearing.
  2. If you are seriously considering fighting your case and going to trial, you should participate. In such a case it is quite advantageous to have your DWI defense attorney cross-examine the police officer(s) to obtain necessary discovery of the case against you in order to better prepare for your trial.

If you are arrested and if you refused to take a breath test, it is necessary to consult an experienced DWI attorney. Please contact my office for a FREE consultation in order to prepare the best possible defense to your case.

Michael Kramer, Esq.

Call for a Free, 20-min,
Traffic Ticket Strategy Session
(914) 709-7161