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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 found Mr. Bruffett after calling several lawyers in Syracuse. I had 6 outstanding tickets that I completely blew off and forgot about until I was arrested in NYC over a suspended license. Mr. Bruffett was able to get ALL of my tickets reduced with NO POINTS and he also got 2 tickets dismissed. When I first met him, it was the most pleasant experience one could ask for. He's one of the few lawyers who actually cares about YOU and not your money. He quoted me an extremely reasonable amount for all 6 tickets. I never had to step foot into a court room and he has a great relationship with the DA and he was able to work something out that was in my best interest. I feel a huge relief knowing all of my tickets are over with, and I could not thank Mr. Bruffett enough. He also gave me his personal phone number and I was able to text and call him whenever I needed him. Before I even retained him, I had a question and texted him and he called me and walked me through the entire process. I highly recommend Mr. David Bruffett and his firm Azria & Bruffett. Thank you for everything David, and although I hope I never have to retain you again, if anything should ever happen, you'll be the first person I go to. 
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