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DWI Chemical Test Refusal Hearings in New York

by Seth Azria on 8/03/2015

Having a Hearing Can be Valuable Even When Lost

I have had clients, and some attorneys, who ask me, “Should I go forward with a refusal hearing?”—and despite the fact that they are unlikely to win, I tell them that I believe that they should in most cases. Participating in a refusal hearing is an excellent way to get free discovery and to cross-examine the police officer about the underlying conduct in the case—both in terms of how your client was interacting with the officer and the officer’s observations of your client.

As a result, I tell my clients that they should never waive their right to a refusal hearing. In fact, the only time I suggest to clients that they should waive their right to that hearing is if the DA is willing to give them a resolution to the charges within a relatively short time frame. The reason for this is that if the driver loses the refusal hearing, driving privileges will be lost for one year. The only way to be able to drive during this one-year suspension period is to be eligible for a Conditional License, which allows a driver with a suspended license to drive to and from work and school. To be eligible for a Conditional License the driver must be eligible to attend the NYS Drinking Driver Program; and have been convicted of an alcohol related charge.

This means the driver cannot have taken, nor have been eligible to take and refused, the DDP program in the previous five years and that they must be convicted of an alcohol related offense. As long as a driver is eligible to participate in the NYS Drinking and Driving program they will at least be able to drive to and from school or work, even if they failed to take a breath test, and by statute, their license privileges have been suspended for one year.

The obvious import of this is if a driver is found to have refused a validly requested chemical test, they can only have driving privileges after they have been convicted of an alcohol related offense. The driver who loses his license for one year for a refusal, who is then successful at avoiding an alcohol related conviction, will have no ability to drive at all during the one year revocation. A dubious victory for the driver.

Article adapted from partner David C. Bruffett's chapter in "Inside the Minds: Strategies for Defending DWI Cases in New York, 2015 ed. published by Aspatore Books, A Thomson Reuters business. 

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Azria & Bruffett PLLC BBB Business Review

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Top Rated Award Winning Law Firm in Syracuse


Top Rated Law Firm, Syracuse NY

 
Professional and reliable, highly recommended

After receiving a ticket upstate NY, I contacted Seth's firm based on the great reviews on this board and was really happy that I made this choice.

Seth explained the possible outcome in my case when I first called him and managed to achieve exactly what he told me, which shows that he is experienced and knowledgeable in his area of practice. He successfully negotiated with a DA a reduction of charges from a 6 point speeding to a non-speeding violation without me having to appear in court in person.

Monica, Seth's paralegal, kept me informed of all necessary details throughout the whole two month process and I received a response to every email that I sent to the firm.

I would highly recommend Seth's firm for anyone looking for reliable and professional attorney services.

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I was very satisfied having them represent me on a speeding ticket. They kept me posted through out the process and made me at ease from the start as it would have been very difficult for me being out of state for this speeding ticket. Very Professional and I highly recommend them.

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Got a speeding ticket doing 80 in a 65 while on the way to drop my cousin to RIT upstate. Found this firm online, spoke to Ralph & worked with Monica. Was nice and simple process they took care of everything, saved me a drive from NYC upstate. Would highly recommend them to anyone needing to have a speeding ticket handled without the hassles.

Great job! Hope not to have to the need for your service again, but if I do, I shall call. Thanks.

Highly recommended

Mr. Azria did a great job handled my speeding ticket! All it took was a quick telephone call and he took care of everything. He got my charge (and fine) reduced and I did not have to appear in court. Everything was handled via telephone & email.

Mr. Azria was great to deal with and he did exactly what he promised for a very reasonable fee. I hope I don't need him again, but I strongly recommend him.

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