Buffalo NY DWI and Traffic Attorney

New York State Department of Motor Vehicles DWI Refusal Hearing

What is a Refusal Hearing: If you refuse to submit to a chemical test, such as to the Breathalyzer, your license to drive in New York State can be revoked for one year. Within two weeks of your arraignment, the Department of Motor Vehicles (DMV) will schedule a Refusal Hearing. A separate hearing from your criminal case, an Administrative Judge oversees the case where the standard is "Clear and Convincing Evidence." At this hearing, the judge will make a determination as to whether or not you knowingly refused to submit to a chemical test.

Purpose of a DMV Hearing: Although the DMV court is different from criminal court, A DWI Refusal Hearing is a significant piece a misdemeanor or felony DWI criminal case. You can loose your license for a year, be fined $500 and receive a “Driver Responsibility Assessment" fine of $250 for three years by the DMV, but prosecutors can use your refusal at your criminal DWI trial. In fact, the law permits district attorneys to use your refusal as "consciousness of guilt" against you. Certainly, giving prosecutors an additional weapon in their arsenal is not something you should take casually.

Why Do I Need An Attorney at my Refusal Hearing: Trying to defend yourself at a Refusal Hearing without the advise of an attorney is simply foolish. Although the Judge can make a decision based merely on the paper work the police officer provides, if the officer shows up to the hearing, an experienced attorney will have a tremendous opportunity to cross examine the officers testimony. More importantly, not only will a record be made of the testimony, but no prosecutor will present to make objections or defend the police officer. In Erie County, prosecutors often do not want officers to show up and testify for this reason. An experienced criminal defense attorney will be able to lock a police officer into testimony that is potentially damaging to the prosecution's case. In some cases, prosecutors may not even be aware that the officer showed up at all. If there was ever a "free" shot at the police and law enforcement where your case can be enhanced and law enforcement's case can be hurt, this is it.