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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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I’d like to thank you very much. I was very worried about my traffic ticket because I am a cdl truck driver. Any ticket is really dangerous for me because I shouldn't have any points. But Mr. Azria solved all these issues. I am very happy to get this perfect result. 0 points! My best wishes to you. Thanks again.

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Had 2 tickets that he helped get rid of the points added onto my license. Very helpful and friendly about answering questions on the process. He went in place for me in court and defended. All I had to do was email him information over email (and pay of course).

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Azria & Bruffett provided excellent representation for my 89-year old father who was charged with two tickets in Cortland, NY. For a very affordable fee, they were able to obtain dismissal of the moving violation resulting in a very small fine and court costs. I live in another state so this was especially convenient for me to help my dad and they saved me a lot of time. We spoke with an attorney and a paralegal guided my dad and I through the remainder of the process. The firm responded to all of my questions promptly. Highly recommended.

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As a a 60 year old physician I am semi-retired and my wife and I travel the country to do work in my specialty at places that are shorthanded. Since I only work about 1/3 of the year we have time to drive to these places. Recently I was stopped on a highway in NY. I haven't had a speeding ticket since I was in my twenties. The officer said I was doing 81 in a 65 MPH zone (my reading 76 while trying to pass a slow moving vehicle with a line of cars behind me trying to get by me as well). I read the reviews and chose Attorney Azria.

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