Police departments throughout New York use various machines to measure "BAC" or "blood alcohol content". These machines - going by such names as Intoxilyzer, Breathalyzer, Datamaster - measure the concentration of alcohol in the blood, using breath samples that drivers blow into them.
Under certain circumstances, any person who operates a motor vehicle in New York is "deemed to have given consent to a chemical test" of his or her breath, blood, urine, or saliva "for the purpose of determining the alcoholic and/or drug content of the blood".
Refusal to submit to a chemical test can have significantly negative consequences. For example, the license of a driver accused of an alcohol-related driving offense will automatically be suspended at the driver's Criminal Court arraignment, pending the outcome of a "Refusal Hearing" conducted by the Department of Motor Vehicles ("DMV"). If the driver loses the Refusal Hearing: a) DMV will revoke the driver's license for at least one year (remaining in effect even if the driver is found innocent of all alcohol-related driving offenses); and b) DMV will impose a "civil penalty" of at least $500.00. These sanctions are in addition to whatever criminal consequences the driver might face.
Under Section 1194(2)(c) of New York's Vehicle and Traffic Law, the following issues must be resolved at every Refusal Hearing:
- Did the police officer have "reasonable grounds to believe" that the driver had operated a motor vehicle while under the influence of alcohol or drugs?
- Did the police officer make "a lawful arrest" of the driver?
- Did the police officer give the driver "sufficient warning, in clear or unequivocal language, prior to the 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"?
- Did the driver "refuse to submit to such chemical test or any portion thereof"?
If, after the Refusal Hearing, the hearing officer "finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal."
If, after the Refusal Hearing, the hearing officer "finds all of the issues in the affirmative, such officer shall immediately revoke the license or permit to drive or any non-resident operating privilege".
Many drivers unadvisedly give up the right to a Refusal Hearing. They do this either by signing a "waiver form", or by failing to appear for the Refusal Hearing on the scheduled date.
The Refusal Hearing is a valuable right. It should not be waived without first consulting counsel. Due to the variety of substantive and procedural rules involved, sometimes a Refusal Hearing can be won even where the driver has deliberately refused to submit to a chemical test. Furthermore, win or lose, the Refusal Hearing provides an excellent opportunity to cross-examine the arresting officer in preparation for the criminal trial, without a prosecutor present, and without the officer having been prepared to testify by a prosecutor.
Don't think about giving up your right to a Refusal Hearing without first speaking with a lawyer.
Call Bruce Yerman for a FREE confidential consultation at 646-480-1278.