Written by GuestPoster on December 20, 2011 – 9:45 am
In New York, being charged with Driving While Intoxicated (DWI or DUI) with a refusal can have many costs associated with it for those who are accused. Perhaps the costliest item associated with a DWI refusal is the loss of the privilege to drive.
Having a driver’s license is a privilege and not an inalienable right. As such, this privilege can be legislated by the law.
A person charged with a DWI under section VTL 1192 and the corresponding sections of law is presumed to give their consent to a breath or bodily fluid sample. Most commonly, when a police officer pulls over a driver for the suspicion of driving while intoxicated, the driver will be asked to submit to a Breathalyzer analysis. The driver’s refusal to cooperate will trigger the DMV to initiate actions to try to revoke the driver’s license.
Once a person is arrested and charged with DWI, they will appear in court with their New York court attorney at an arraignment. The arraignment is the initial court appearance where many statutory deadlines begin to run. Among many things that happen, the court will suspend the driver’s privilege to drive pending the outcome of the case. Furthermore, if the case involves a refusal, the license will be revoked unless it can be proven that a refusal under the law did not take place.
The Department of Motor Vehicles is the forum to where a determination is made whether or not there was a “refusal.” This is known as the “refusal hearing.” The hearing is adjudicated by an “administrative law judge.” These proceedings are separate and apart from the proceedings taking place in criminal court.
If the driver requests a refusal hearing, the hearing must take place with fourteen days of the arraignment.
At the hearing, the officer can present evidence and it must be proven, among many other things, that the refusal was persistent, clear, and unequivocal. If the court is satisfied with the evidence, the driver’s privilege to drive will revoked for a minimum for one year. Additional sanctions can be levied such as penalizing the driver with a $500.00 fine.
