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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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Seth made what I thought would be a nightmare and turned it into something very simple and quick. He is professional and always goes above and beyond for his clients. I would recommend him to anyone!

Thank you Esq. Bruffett!

Attorney David Bruffett and his very professional team helped me handled my speeding ticket (55mph in a 40mph zone) in Town of Manlius. He negotiated a reduction of my 4 point ticket to a 0 point, and a $77+63 fine/fee. I am very thankful for Attorney Bruffett and his team's very professional, courteous, in time correspondences and services. Will recommend him and the firm to anyone who may need their services.

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Mr. Azria was able to get my 8 points ticket down to 0 for "Parking/No standing Ticket" Mr. Azria is highly professional and handles everything for you. Before hiring his services, I spoke with Mr. Azria on the phone. He was extremely knowledgeable and explained all the factors I never thought about, which play a role in fighting to lower the ticket. I'm ecstatic about the phenomenal job Mr. Azria and his office did for me. I will 1000% recommend him. Thank you!!
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Super efficient process with outstanding results. I received regular updates via email with clear instructions and expectations. Best of all, the results exceeded expectations - great reduction in my fine for speeding with zero points.

Thanks Seth and Team - you are great!

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