FORMER PROSECUTOR DEFENDING ALCOHOL AND DRUG RELATED ARRESTS!  

 DWI, Drugs & Alcohol Defense Attorney

New York DWI Refusal Hearing and DMV:

When a police officer pulls someone over on suspicion of DWI, they begin evaluating them to see if they are intoxicated the second they step up to the car.  Is there an odor of alcohol? Eyes bloodshot?  Slurred speech? Here the officer will almost immediately ask “have you been drinking?”  And, here, almost always, the answer is “yes, I had two glasses of wine (or, "two beers").  
With this admission, the officer will likely ask the motorist to step out of the car and take a portable breath test (distinguishable from the "breathalyzer" device administered later at the station -- inadmissible at court, but part of the probable cause for an arrest) "field sobriety test."  This is a series of specific physical actions that purport to test balance, reflexes and mental ability. Three tests in particular are recommended by the National Highway Traffic Safety Association: one leg stand, walk and turn, and the horizontal gaze nystagmus (tracking an object like a pen horizontally with your eyes). 


A motorist may refuse to take the field sobriety tests, although the officer may not tell you that. But like everything else in life - it comes with consequences.  Refusing to take the tests will in all likelihood lead to an arrest (which may be likely to begin with). A problem with field sobriety tests is that while they are supposedly objectively administered, they are subjectively interpreted.  And, both environmental conditions and physical conditions other than intoxication can cause a person to perform poorly.  For example, performing the test on uneven ground. Even the three tests recommended by the National Highway Safety Association are far from perfectly reliable: the one-leg stand has a 65% possibility of predicting whether or not you are above the legal limit, the walk-and-turn has a 68% percent probability, and the horizontal gaze test has a 77% probability.  That means, at best, the test gets a “C” average!  Yet, the motorist almost always is marked for failing some or all of these field tests and correspondingly arrested.  Thus, the epic question becomes whether ‘tis nobler in the mind to take the test or not to take it.  If you are pulled over on suspicion of drunk driving in New York and you know you've been drinking, even very knowledgeable New York DWI attorneys are often divided on whether or not to refuse to perform the breath test because there are so many other factors besides intoxication that could affect the results.

So, it really does depend.  For example, if someone truly did not drink a lot, they may as well take the test to help further later plea negotiations.  However, if they did drink a relatively considerable amount, they should refuse to perform any tests.  Ideally, that means refusing to participate even in the roadside standardized field sobriety tests at the scene AND the chemical breath test requested later at police headquarters or the trooper barracks.

Generally speaking, breath alcohol tests work by measuring the concentration of alcohol in your breath; i.e,  blood alcohol content or concentration (B.A.C.).  With each breath taken, tiny blood vessels in your lungs called alveoli take in oxygen while discharging carbon dioxide - and, indicia you've been drinking alcohol.  The breath test machines measure the concentration of alcohol in your breath and applies a standardized equation to estimate how much alcohol there then is in your blood.

Be advised - there are consequences of refusing the chemical breath test.  Ultimately, whether it is the correct or incorrect decision, if you refuse to submit to a chemical breath test, such as to the breathalyzer or intoxilyzer, your license or privilege (if not licensed here) to drive in New York State will automatically be revoked for one year.

But, as with every forfeiture there should be a due process hearing – here, it is simply one known as the “refusal hearing.” 

It is a separate hearing entirely from your criminal case held within fifteen days of the arraignment.  An Administrative Law Judge or “ALJ” (appointed by DMV) oversees the case where the standard is "clear and convincing evidence" (more than a “preponderance of evidence” and less than “beyond a reasonable doubt”).  At this hearing, the ALJ will make a ready determination as to whether or not you knowingly refused to take the chemical breath test.

Although distinct from your criminal case, a DWI Refusal Hearing can be a significant part of the overall DWI case. Not only can you lose your license for a year, be fined $500 and assessed $750 by the DMV, but prosecutors can use your breath test refusal at your criminal court DWI trial. In fact, the law permits the assistant district attorney (ADA) to use your refusal as "consciousness of guilt" and to draw an adverse inference against you.  Thusly, potentially giving prosecutors additional weaponry in their already potent arsenal is not a casual decision and the advice of a lawyer experienced in driving while intoxicated cases and law should be obtained.

Going to a Refusal Hearing alone would be unwise.  Although ALJs can make their decisions merely on the procedural papers provided by the police, if the officer shows up there is an unique opportunity to cross examine them.  More importantly, not only will a record be made of the testimony, (for example, see one of Rex Pietrobono’s hearing transcripts below) but no prosecutor will present to make objections or act on behalf of the police officer (although the ALJs seemingly battle quite hard to do just that.)  An experienced DWI defense attorney will be able to lock a police officer into helpful testimony that is potentially damaging to the prosecution's criminal case. 

[Partial transcript of DMV actual refusal hearing; pages 32 through 37:] 

[Parties: "The Court" = DMV Administrative Law Judge, "Witness" = Trooper, "Mr. Pietrobono" = Defense Counsel.]


CROSS-EXAMINATION OF S. ESKIAM BY R. PIETROBONO          32
. . .
17                    THE COURT:    But I don't see what the relevance of all this
18          is, counsel.
19                    Q:    Her signature doesn't appear on here, does it?
20                    THE COURT:    It speaks for itself, it doesn't appear.
21                    MR. PIETROBONO:     Well I don't know that that speaks for
22          itself.  I see it's written out.
23                    THE COURT:    Give me Exhibit 2.
24                    MR. PIETROBONO:    Is there an exhibit there?
25                    THE COURT:    Give me Exhibit 2.


CROSS-EXAMINATION OF S. ESKIAM BY R. PIETROBONO          33
1                   THE WITNESS:    If I can just explain to my [inaudible: 1
2            second]--
3                   THE COURT:    [Interposing]    I don't see anyone's signature
4            on here.  I see a defendant, Amanda K.  You printed that
5            out?
6                   THE WITNESS:    Yes.
7                   THE COURT:    Okay, she didn't say anywhere on here, did
8            she?
9                   THE WITNESS:    No she did not.
10                 THE COURT:    Okay.
11                 THE WITNESS:    If I could just state again, as I stated
12          earlier, Ms. K. did refuse to sign any documents.
13                 Q:    Okay, but you personally didn't read her her refusal
14          warnings.
15                 A:     I did advise Ms. K. of her warnings, yes.
16                 Q:    You advised her of her warnings.
17                 A:     Yes.
18                 Q:    How did you advise her of her warnings?
19                 A:     Ms. K. was explained that if she did not submit
20          to the test, as New York State law, her license will be
21          revoked.
22                 Q:    That was at the scene.
23                 A:     At the scene Ms. K. was advised [inaudible: 1
24          second].
25                 Q:    At the scene she was advised what specifically?

CROSS-EXAMINATION OF S. ESKIAM BY R. PIETROBONO          34
1                   A:    At the scene Ms. K. was advised that she was
2            required to submit to the Alco-Sensor.
3                  Q:     Okay, and how was she advised of that?
4                  THE COURT:    Haven't we already covered this, counsel?
5                  MR. PIETROBONO:   Well he's just now testifying. He's just
6            testifying what do you think.   I'm asking what--
7                  THE COURT:    [Interposing]  She was advised that she had to
8            take the test by law.  I mean he said it about three or four
9            times.
10                MR. PIETROBONO:    And that's the whole warning?
11                THE COURT:    That's at the scene [inaudible: 1 second]
12          answer, and that has nothing to do with this hearing.
13                MR. PIETROBONO:   Well it does from our position that it
14          wasn't read to her.
15                Q:     So what did you tell her--
16                THE COURT:   [Interposing]   [inaudible: 1 second]   He is
17          required to read the chemical test warning for the DataMaster,
18          not for the Alco-Sensor.
19                MR. PIETROBONO:    Please, Your Honor, can I ask him to
20          answer the question and not you?
21                THE COURT:   Counsel, you keep repeating yourself.  Ask the
22          question.
23                Q:     What warning did you give her?
24                A:      Ms. K. was advised that under New York State law
25          she is required to submit to the test.   If she fails to submit
 
CROSS-EXAMINATION OF S. ESKIAM BY R. PIETROBONO          35
1            to the test, her license is subject to [inaudible: 1 second].
2                  Q;     And you told her that yourself.
3                  A:      Yes, she was advised several times.
4                  Q:     By you or someone else?
5                  A:     By me, myself, and--
6                  THE COURT:    [Interposing]   Okay [inaudible: 1 second]  four
7            or five times already.
8                  Q:     Did she ask you if she had to take the test?   Do you
9            remember her asking that question?  Do you remember her asking

10          if she had to take the test?
11                 A:     Now we're talking about the DataMaster.
12                Q:     No, at the station.
13                THE COURT:    No, we're talking- about the scene right now.
14                MR. PIETROBONO: No, I'm not talking about the scene, I'm
15          talking about the station.
16                THE COURT:   Then I'm confused. What did you tell her at
17          the station?
18                THE WITNESS:   Ms. K. was advised that she was required
19          to take the test.
20                THE COURT:    I don't care about that, was she read this
21          warning?
22                THE WITNESS:    Ms. K. was advised [inaudible: 1
23          second].
24                MR. PIETROBONO:   She was advised.    So I'm asking what he
25          said, Your Honor, because there's a difference.   He didn't read

PROCEEDINGS                                                                                    36
1            it, he's told her.
2                  THE COURT:    Hold it, did you read the warning?
3                  THE WITNESS:    I did not read word for word, no, Your
4            Honor.
5                  THE COURT:    Okay, so what did you tell her as to what she
6            had or not have to do?
7                  THE WITNESS:    Ms. K. was advised that she was
8            required.   If she did not submit to the test then her license--
9                  THE COURT:    [Interposing]   Like you're telling me now.
10                THE WITNESS:     Yes.
11                THE COURT: Okay, but you never read her the chemical test
12          warning.
13                THE WITNESS:    No, no, no, Your Honor, not word for word.
14                THE COURT:    Okay, did you read her the chemical test
15          warning from the report of refusal?
16                THE WITNESS:    Did I read her--
17                THE COURT:    [Interposing]  Yeah. It says here after being
18          arrested the [inaudible: 1 second] as follows: Your refusal to
19          submit to a chemical test, et cetera, et cetera.
20                THE WITNESS:       Yes.
21                THE COURT:           Did you read this form to her?
22                THE WITNESS:  No. Can I just take a look at that form,
23          Your Honor?
24                THE COURT:          Sure.
25                THE WITNESS:     This form was not read.

PROCEEDINGS                                                                                       37
1                  THE COURT:    Okay, I need it back.
2                  MR. PIETROBONO:   No more questions, Your Honor.
3                  THE COURT:    No, I'm going to close it, that's it.
4            Officer, you're required under the law to read the warning
5            exactly as it states on the piece of paper.  You can't just
6            tell her that she's going to be suspended.  So Ms. K., I'm
7            not taking any action against your license.  This has nothing
8            to do with the criminal case.  And that's it, you're all free
9            to go.
10                MR. PIETROBONO:    Thank you, Your Honor.
11                [END 0F HEARING]
 

Despite the fact that a Refusal Hearing is ripe for cross-examination, the end result, i.e. the potential resulting revocation of your license is real and often difficult to avoid because the standard of proof at the DMV hearing is lesser than the criminal law proof of "beyond a reasonable doubt" (this fact is borne out from ALJ exceedingly high records of affirmative findings and revocations.)

The four issues for the defense at a DMV refusal hearing:
* Did the police officer have reasonable grounds to believe that the defendant had been driving under the influence or while his/her ability were impaired?

* Did the police officer make a lawful arrest?

* Was the defendant given sufficient warning, in clear or unequivocal language, prior to the refusal, that the refusal to submit to the chemical test would result in the immediate   suspension and subsequent revocation of the defendant’s license or privilege to operate a motor vehicle in New York?

* Did the defendant, after reasonable grounds have been shown, following a lawful arrest, and following sufficient warning of the consequences, then refuse to submit to a chemical test?

After the refusal hearing is completed, if the ALJ “finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal.”  On the other hand if after the Refusal Hearing, the ALJ “finds all of the issues in the affirmative, such officer shall immediately revoke the license or permit to drive or any non-resident operating privilege”.

While the odds of success are much more difficult at this DMV hearing than in a criminal court, the information you gain, even if you do not keep your license, is too significant to disregard considering the bigger picture.


The Law Office of Rex Pietrobono represents clients on DWI's and at the often corresponding Refusal Hearings throughout Westchester County and surrounding areas including Putnam, Dutchess, Ulster, Orange and Rockland.  To learn more information about how we can help you please contact our office at (914) 666-8137 to speak directly with Mr. Pietrobono at no charge. ​

  • Refusal Hearing mp331:52

                        Rex to the rescue!

                        5.0 stars
                        Posted by Amanda K., July 25, 2016

Rex was recommended to me by another lawyer I knew from Connecticut as one of the best attorneys for DWI cases in Westchester county. In my case, there was an accident involved and a refusal to take a breathalyzer test. Rex went to work during the refusal hearing, he did not leave any room for misinterpretation of the events by all parties involved. He was concise and efficient in handling my case and we won my refusal hearing when only a very small percentage of these hearings ever end in the defendant's favor - so the odds were against us. He did a fantastic job assisting me with everything that had to be done at DMV and in the criminal court. Even the judge, who was against us from the very beginning, turned around in the end after Rex showed the prosecutor the trouble with their case against me. What's important is that my case ended with no criminal record whatsoever and my driving privilege fully restored. I would recommend Rex to anyone and everyone in NY with a DWI charge.

- Amanda K.

NYS Vehicle & Traffic Law Section 1194(2)(c) reads:  
(c) Hearings. Any person whose license or permit to drive or any non-resident driving privilege has been suspended pursuant to paragraph (b) of this subdivision is entitled to a hearing in accordance with a hearing schedule to be promulgated by the commissioner. If the department fails to provide for such hearing fifteen days after the date of the arraignment of the arrested person, the license, permit to drive or non-resident operating privilege of such person shall be reinstated pending a hearing pursuant to this section. The hearing shall be limited to the following issues: (1) did the police officer have reasonable grounds to believe that such person had been driving in violation of any subdivision of section eleven hundred ninety-two of this article; (2) did the police officer make a lawful arrest of such person; (3) was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person's license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made; and (4) did such person refuse to submit to such chemical test or any portion thereof. If, after such hearing, the hearing officer, acting on behalf of the commissioner, finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal. If, after such hearing, the hearing officer, acting on behalf of the commissioner finds all of the issues in the affirmative, such officer shall immediately revoke the license or permit to drive or any non-resident operating privilege in accordance with the provisions of paragraph (d) of this subdivision. A person who has had a license or permit to drive or non-resident operating privilege suspended or revoked pursuant to this subdivision may appeal the findings of the hearing officer in accordance with the provisions of article three-A of this chapter. Any person may waive the right to a hearing under this section. Failure by such person to appear for the scheduled hearing shall constitute a waiver of such hearing, provided, however, that such person may petition the commissioner for a new hearing which shall be held as soon as practicable.

(d) Sanctions. (1) Revocations. a. Any license which has been revoked pursuant to paragraph (c) of this subdivision shall not be restored for at least one year after such revocation, nor thereafter, except in the discretion of the commissioner. However, no such license shall be restored for at least eighteen months after such revocation, nor thereafter except in the discretion of the commissioner, in any case where the person has had a prior revocation resulting from refusal to submit to a chemical test, or has been convicted of or found to be in violation of any subdivision of section eleven hundred ninety-two or section eleven hundred ninety-two-a of this article not arising out of the same incident, within the five years immediately preceding the date of such revocation; provided, however, a prior finding that a person under the age of twenty-one has refused to submit to a chemical test pursuant to subdivision three of section eleven hundred ninety-four-a of this article shall have the same effect as a prior finding of a refusal pursuant to this subdivision solely for the purpose of determining the length of any license suspension or revocation required to be imposed under any provision of this article, provided that the subsequent offense or refusal is committed or occurred prior to the expiration of the retention period for such prior refusal as set forth in paragraph (k) of subdivision one of section two hundred one of this chapter.