Although some New York DWI and DUI lawyers might argue the “fix is in” when it comes to defending a client in a DWI Chemical Test Refusal Hearing at the NY DMV with an Administrative Law Judge, simply that is not the case. While the standard in these hearings are lower than the parallel proceedings in criminal court where a VTL 1192.3 arrest is prosecuted, the lower burden of proof is not the equivalent to an insurmountable challenge. Case (or cases) in point, both Elizabeth Crotty and Jeremy Saland secured dismissals after the NYPD Officers did not provide sufficient evidence at the respective DWI Refusal Hearings. Because of Crotty Saland PC’s efforts, cross-examination of the police officers and convincing of the judges, these clients avoided a year long revocation of their license to drive in the State of New York. Obviously, the alternative resolution would have been horrific for our clients.
Before briefly discussing these specific Refusal Hearings, any time a person is arrested for and charged with a Common Law DWI pursuant to New York VTL 1192.3, the arresting police officer or member of the police department must first ask that accused to provide a breath sample. If he or she refuses, the officer in clear and unequivocal language must also advise the driver that failure to submit to a chemical test would result in an immediate suspension and ultimate revocation of his or her license to drive. Not only can this refusal be used against the driver at a later criminal hearing or trial, but even if a criminal case is later beaten, dismissed or the accused is exonerated, the finding and punishment by the Administrative Law Judge would stand. In addition to the issues addressed above, the Administrative Law Judge must also find that the defendant was arrested with probable cause and he or she was in fact operating the motor vehicle.