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.
In the first matter, our client was accused of hitting the back of a police car while operating a motor vehicle. On its face a serious allegation, the Administrative Law Judge found that the officer did not provide a clear warning to our client and therefore our client’s refusal was not knowing. In the second Refusal Hearing, our client was found asleep and allegedly slumped over in a running vehicle. However, based on the testimony of the officer and his cross examination, the testimony of our client, and video secured by Crotty Saland PC reflecting the running car, it became clear that for approximately two hours the vehicle had not moved even though it was running and our client was sleeping inside. Around 30 degrees outside and with the heat running, our client engaged the engine, but had not moved the car since arriving at the location approximately six hours before. Arguing that our client was doing the “right thing” and sleeping inside the vehicle instead of driving, the NYPD could provide no evidence to the contrary. Ultimately, the Administrative Law Judge found that the NYPD had failed to establish operation of the vehicle.
Make no mistake. The above cases are unique and the successful resolution of the Refusal Hearing and restoration of our clients’ respective license to drive are noteworthy, but each case must be examined within the paperwork, testimony, and other evidence available. Here, all of these factors, along with the diligence in securing video evidence before it was lost or destroyed, pushed the balance of the Refusal Hearing in favor of our clients.
To learn more about New York Drunk Driving crimes and Chemical Refusal Hearings, follow the links found in this entry.
Crotty Saland PC is a New York criminal defense firm with founding partners previously serving as DWI prosecutors in the Manhattan District Attorney’s Office. By no means apologists for what is an avoidable and serious crime, the New York DWI lawyers at Crotty Saland PC nonetheless protects the rights of the accused in DWI and DUI arrests throughout the City of New York as well as the counties of Westchester, Rockland, Putnam, Orange and Dutchess.