When operating a motor vehicle in the state of New York, drivers give their acceptance to provide a sample of their blood, breath, urine or saliva if requested to do so during the course of a valid traffic stop for a violation of the Vehicle & Traffic Law. If you are stopped by a police officer for a lane violation, for example (swerving between two lanes) or operating the car erratically, the officer is likely to ask you if you have been drinking anything of an alcoholic nature. Regardless of your response to that question, the officer can then ask you to blow into a device known as an “Alco-sensor.” If you do and the reading is positive, the officer has probable cause to arrest you for Driving While Intoxicated.
What if you refuse to provide a breath, blood or urine sample? If you do so, you can still be arrested for DWI , based upon the officer’s observations of your walking, the color of your eyes, an odor of alcohol on your breath, or other “field Sobriety tests” which the officer can request that you perform, such as standing on one leg, or reciting the alphabet or counting backwards and forwards. However, in addition to the arrest for DWI, if you refuse to provide a breath or other chemical sample, you will now be charged with a “refusal to take a chemical test”, which is an administrative, not criminal infraction, with different but no less onerous implications.
A refusal to take a chemical test in Westchester County, for example, will result in a hearing at the Department of Motor Vehicles in Yonkers, within two weeks of the arraignment in the criminal case, in which the DWI case against you will be heard. The refusal hearing, which is generally held on a Monday or Wednesday afternoon, is conducted by the one administrative judge on staff in Yonkers, Walter Zulkowski. Generally, most people are represented by an attorney at these hearings, and for a very good reason. Although this is not a criminal proceeding, if you are found to have refused the chemical test, your license to operate a motor vehicle will be revoked for one year, and for 18 months if you have a commercial driver’s license. Obviously, for drivers of taxis, buses or trucks, a finding of a refusal to take a chemical test can be devastating as it is likely to lead to losing his or her employment for a year and a half, although there might be a possibility of maintaining some form of conditional license for non-commercial operation of a vehicle.
Often, police officers do not show up for the refusal hearing, as they may not be getting paid for the time that they are appearing for the hearing at DMV. Thus, if this happens, at least until the next scheduled hearing, the judge is likely to reinstate the driver’s license unless there are other infractions making the operator ineligible for any type of license, such a prior convictions of other refusals or driving while intoxicated. At the refusal hearing, the rules of evidence do not apply, thus hearsay evidence can be used by the judge. Additionally, the judge can allow the officer to read from a card when he is asked to identify the exact warnings that he gave the driver upon he initial refusal. The issues for at the hearing are: Was there a proper reason to stop the vehicle? Were clear, unequivocal warnings given to the operator as to the consequences of a refusal, and did the operator “persistently” refuse to provide a sample of blood, breath, urine, or saliva? (Persistently defined as refusing after an initial refusal and then being given the warnings and continuing to refuse). If the judge rules yes to these questions, the operator will be deemed to have refused the chemical test and lose his or her license for either one year for non-commercial drivers or 18 months for commercial drivers.
In Westchester County, until recently, under certain circumstances it made sense to refuse, as it would make proof of a DWI more difficult and sometimes result in the lower charge of DWAI, the traffic infraction of Driving While Ability Impaired. However, the policy of the Westchester District Attorney’s office has changed and they no longer negotiate to a DWAI from a DWI if there has also been a refusal.
If you are charged with a refusal to take a chemical test, DWI, felony DWI, or traffic infraction, contact the Law Office of Mark A. Siesel online or toll free at 914-224-3086 for a free consultation to discuss your legal rights and options.