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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 recommend this law firm as they are very knowledgeable and professional dealing with the NY speeding traffic ticket I had been charged with. I am very pleased with the negotiations this firm had negotiated on behalf of me. Thank you!

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I had gotten an extremely high speeding ticket when I drove upstate for the first time. I'm 18 and have had my license for about a year, so my mother and I thought it would be a good idea to hire an attorney. It was a holiday weekend, so I was surprised when David Bruffett answered our call on Presidents' Day. I'm so thankful he did. He's did an amazing job getting my speeding ticket reduced. He instructed my on what to do to increase my chances to reduce as many points as possible. He was honest when telling us what our outcome would most likely be, however, the outcome exceeded our expectations. He and his staff were very professional and supportive. David had always made himself available to answer our calls.

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I got a speeding ticket in the wonderful state of NY.(I live in Texas) I called Seth Azria and he was the best attroney I have ever dealt with just a great guy. He got my ticket reduced to a parking ticket with no points and his fee was very affordable. I will def use him again for any other instance I may need.I travel to Ny from time to time. I def recommend him worth every Penny.
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I look at myself as a very successful person in life. But I am nothing if I can't provide for your family. I was heading down that path with two speeding tickets to my name with very high points. My means of providing is driving over 100 miles daily. Many thanks goes out to the office of Azria & Bruffett Law Firm. Mr. David is such a wonderful person even advise you how to get things done. When you talk about communication with clients - Azria & Bruffett does it the best. I love these people.
I highly recommend this Law Firm if you have a traffic violation they are A1.