DUI / DWI in New York and Refusal Hearings, Part 1

January 24, 2012

White Car.jpegOur client really felt his long (if self-inflicted) ordeal should be over. After a six-month revocation for drunk driving, his full license had been restored (he’d limped along all those months on a conditional license that got him to and from work). The ignition interlock device he’d had to install - which essentially turned his car into a rolling breathalyzer - had been removed.

But the wheels of justice turn slowly, and if our client had forgotten this, he now got a reminder from the Department of Motor Vehicles. It came in the form of a notice scheduling, or rather rescheduling, an administrative hearing. The subject of the hearing? His alleged refusal to take a chemical test in connection with the DWI/DUI he’d already been punished for. If the hearing didn’t go his way, he was facing a new, year-long revocation.

As we’ve discussed before, DMV’s administrative proceedings can run parallel to any criminal action. And this makes sense, because technically they’re very different things, particularly when it comes to DWI and refusal.

If you drive drunk, it’s a public safety issue. You’re endangering everyone else on the road. If you’re found guilty of driving drunk, you’ll have a criminal conviction; you’re branded forever as someone who’s been an enemy of society, and you’ll carry all the baggage that goes with that. Almost as an afterthought, you also face potential jail time, fines and surcharges, along with mandatory license revocation and a $750 driver responsibility assessment.

If, on the other hand, you refuse a chemical test (of blood, breath or urine), you’re just violating the terms of your driving privilege. So, you only face license sanctions and (heavy) financial assessments. (Although you should be warned that prosecutors can make you pay for a refusal in the criminal proceeding as well, by refusing to plead the charge down in the case of a refusal. This is notably the case in the Capital Region’s Albany County.)

In our client’s case, both the criminal and administrative proceedings started off with a bang when he wrapped his vehicle around a tree (after leaving the road and bumping many yards across an open field). He wound up spending hours in an emergency room with injuries to his head and torso, questioned intermittently by a police officer who hovered over the scene, “like a vulture.”

In the end, the arresting officer filed a ‘report of refusal’ along with the other paperwork necessary to commence a DWI prosecution. This started the administrative ball rolling, and because of it, our client’s license was suspended at arraignment. Immediate suspension is required by Section 1194 of New York’s Vehicle and Traffic Law, which also requires a DMV hearing within 15 days of the suspension.

Section 1194 sets out the issues to be determined at the hearing: (1) Did the officer have ‘reasonable grounds’ to believe the driver was impaired by either alcohol or drugs? (2) Did the officer ‘make a lawful arrest’ of the driver? (3) Did the officer give the driver

sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person’s license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made[?]

Noting that this wording seems to presuppose a refusal, we come at last to the heart of the matter which is, (4) Did the driver actually refuse the test?

If the arresting officer shows up at the hearing, these issues are thrashed out on the spot. But often, as in our client’s case, the officer doesn’t appear - and the hearing is adjourned. Pending the new hearing, the defendant’s full driving privileges are restored.

An adjournment of this kind almost guarantees that the criminal charges will be dealt with before the new hearing comes up, and defendants and their lawyers must take into account the potential interplay of criminal and administrative sanctions.

We’ll get into that next time.

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