Chemical Breath Test Refusal in New York City DWI Cases

At the defendant’s arraignment for a drunk driving offense in New York City, the impact of the decision to either refuse or submit to chemical testing of blood alcohol content (BAC) begins to take shape. If, in your case, a chemical breath test was performed, the charge most likely filed by prosecutors and read to the court at arraignment will be either the unclassified misdemeanors of Per Se DWI in violation of § VTL 1192(2) or Aggravated Per Se DWI in violation of VTL § 1192(2-a), depending on whether the registered results were between a .08 and .179 BAC or a BAC of .18 and above. If, on the other hand, you refused a chemical breath test at the precinct, prosecutors can only charge the unclassified misdemeanor of Common Law DWI in violation of VTL § 1192(3) regardless of how intoxicated you may have been. All of this assumes, however, that this is your first DWI arrest. A prior DWI or DUI conviction may result in a felony DWI charge at arraignment. VTL § 1193(1)(c)(i).

Retaining experienced New York City DWI attorneys for arraignment is not just preferable but necessary to avoid the civil penalties that may be imposed at or shortly after this hearing. For more information about how chemical breath test refusal in New York City DWI cases could result in serious consequences, speak with one of our attorneys today.

How Does Refusing to Submit to a Breath Test Impact the DWI Case Process?

In New York City, when there is a refusal to submit to a chemical breath test, the judge at arraignment will schedule and give notice to the defendant of what is known as a DMV Refusal Hearing, an administrative law proceeding where no lawyer will be assigned or provided for free. Here, an administrative law judge rules on whether your refusal to submit to a chemical breath test was both voluntary and occurred only after being informed of the consequences of refusal by police. With previously retained counsel, this hearing is a tremendous opportunity to cross-examine the prosecution’s main witness – the arresting officer – without the presence of the prosecutor assigned to your case. If the officer does not show, as is common when counsel is retained, full driving privileges may be restored upon motion at this hearing. Without counsel, however, this hearing is nothing more than a mere formality for the DMV official to lawfully order the immediate revocation of your license.

When there is no refusal to take the chemical breath test and proof exists of your BAC at an illegal level, New York’s “prompt suspension law” applies and with similar effect: the immediate suspension of driving privileges for the pendency of the criminal case. In New York City, some persons picked up for a DWI offense are eligible for a court order that can provide for the conditional or limited use of a vehicle during this period of suspension. To receive one, however, a motion for what is known as a Hardship Hearing must be made at arraignment; failure to do so is a common yet significant oversight by inexperienced attorneys.

What Constitutes a “Voluntary” Refusal in New York City?

In general, police officers in New York City immediately suspend the license of anyone pulled over under suspicion of DWI who does not subsequently complete a chemical breath test at the precinct. For this refusal to be considered voluntary and therefore admissible in trial, a few key criteria must be met.

Namely, under NYVTL §1194(2)(f), the prosecution can only introduce evidence of a refusal to submit to chemical testing in a DWI case if they can prove beyond a reasonable doubt that the arresting officer informed the defendant “in clear and unequivocal language” what the ultimate consequences of their refusal could be. Simply put, if a defendant refused a chemical test without foreknowledge that it would lead to an automatic license suspension and a probable Common Law DWI charge, their refusal may not be admissible.

What Criminal Penalties Could Stem from a Common Law DWI Conviction?

Since Common Law DWI as defined under VTL §1192(3) is a misdemeanor offense, the maximum amount of jail time a conviction could lead is one year. However, in addition to the automatic six-month license suspension, other consequences may include but are not strictly limited to:

  • A maximum of three years’ probation
  • Community service requirements
  • Up to $1,000 in fines
  • $750 in surcharges for driver responsibility assessment over the course of three years
  • Required installation of an ignition interlock device
  • Mandatory participation in an Impaired Driver Program and/or Victim Impact Panel

A DWI conviction of any kind will almost always result in increased car insurance premiums as well.

Contact an Attorney in New York City to Discuss Chemical Breath Test Refusal in DWI Cases

The skilled New York City DWI attorneys at the Law Offices of Jeffrey Lichtman could fight for your interests in courts across the state. In any DWI case we take, we prepare a defense strategy that is comprehensive and capable of dealing with many license forfeiture provisions that are triggered at arraignment on an offense. If you or someone you know has been arrested for DWI do not delay in seeking our help. The advice we can provide on chemical breath test refusal in a New York City drunk driving case may prevent you from being haunted at arraignment by the choices you made at the precinct.

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