Consequences of a DWI Test Refusal in New York City

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 (s) 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, whether within New York state or not, may result in felony DWI charge at arraignment. VTL § 1193(1)(c)(i).

While it’s always advisable to retain a top New York City criminal lawyer immediately whenever involved in a criminal case, retaining experienced New York City DWI lawyers for arraignment is not just preferable but necessary to avoid the civil penalties that may be imposed at or shortly after this hearing. Of course, if you do appear without a retained lawyer, you will be assigned one by the court. Assigned lawyers come from either the public defender’s office or are private attorneys assigned by the court and paid for by the state. As such, they will handle only the criminal repercussions of your DWI arrest. In a New York DWI case, that is representation for only about half of the relevant proceedings.

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 will rule 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. And 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 – regardless of whether you live within the state. It doesn’t take a top New York City DWI attorney to tell you that is a situation best avoided.

When there is no refusal to take the chemical breath test and proof exists of your BAC at a 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 the experience of the best New York, Brooklyn, Queens and Manhattan DWI attorneys, most persons picked up for a New York 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. In order 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.

In short, the skilled New York City DWI attorneys at the Law Offices of Jeffrey Lichtman can and will fight for your interests in courts in New York, Brooklyn, Queens, Long Island, Westchester and wherever the proceeding may be and we pride ourselves on providing a dedication of service no other New York criminal law firm can or will offer. 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 a New York DWI offense. If you or someone you know has been arrested for DWI or DWAI-Drugs in New York City, Long Island or Westchester, don’t delay in seeking our help.

Schedule Your Free Consultation With the Law Offices of Jeffrey Lichtman Today

Contact one of the New York DWI lawyers at the Law Offices of Jeffrey Lichtman at (212) 581-1001 today or at your earliest opportunity. The advice we can provide on the law of refusal or consent to a chemical breath test in a drunk driving case may prevent you from being haunted at arraignment by the choices you made at the precinct.

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