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| Your Driver's License in the DWI Refusal from Newsday.com |
The
Driver’s License Issues in a New York DWI Refusal Case
The “suspension”
pending prosecution in a DWI refusal case occurs at the initial appearance if
you refused to take a chemical test of your breath or blood.
If the person charged with a DWI is a New York State
license holder then their license is physically taken from them. If the person is
from another country or state (referred to as a foreign license holder) then
their license is photocopied, and their privilege
to drive within the State of New York is suspended.
You will be scheduled by the criminal court for a DMV
administrative license hearing in front of an administrative law judge (ALJ)
within fifteen days. If you do not show up to this hearing your license to
drive will be “revoked” for one
year. Revoked means cancelled.
Under New York VTL 1194 (2) (c) the DMV Refusal hearing is
limited to four main areas legally. The police have the burden of proof at this
hearing. Their burden of proof is at the substantial evidence level. Substantial
evidence is a bit less than the preponderance of evidence used in civil cases.
Preponderance means showing evidence “a little bit more likely than not” that
something is true. They (the police) must demonstrate this low substantial
standard by their testimony in four areas:
1. They had reasonable
grounds (PC) to believe that such person had been driving in violation of
any subdivision of VTL 1192?
2. That they made a lawful
arrest for common law DWI under New York VTL 1192 (3)?
3. That they gave sufficient
warning, in clear and 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.
4. That such person refused to submit to such chemical test
or any portion thereof and that the refusal
was persistent?
If you refused to take a chemical test you will not be
granted any conditional privileges or hardship privileges to drive in NYS
without a plea or a conviction to one of the drinking related charges under VTL
1192. A plea of guilty to a charge or a conviction of guilty to a charge are
the exact same thing legally.
If you were ultimately acquitted of the DWI charge your
refusal administratively would still stand to block any hopes of a conditional
license privilege for one year barring your demonstration at a DMV refusal
hearing that the refusal warnings were not properly given and/or the police
failed to meet their burden of proof.
Originally, born and raised in Brooklyn, NY. My father was
a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY
with my wife (of 24 years), and four kids. I have a B.S. in Human Biology,
Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I
practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated
law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I
love practicing criminal defense and injury law within the Finger Lakes Region
of New York State.
Over 95% of the cases that I take on are New York DWI
defense cases. I am certified as a breath tester by the Department of
Transportation, the guidelines of the International Association of Chiefs of
Police (IACP), and the National Highway Traffic Safety Administration (NHTSA).
I am certified in Field Sobriety Tests, and an active member of the National College
of DUI Defense (NCDD). My online materials include over 400 blog posts, dozens
of articles, and over 330 informative videos on my youtube channel.
I have co-authored Strategies
for Defending DWI Cases in New York, in both 2011 and 2013. These are West
Thomson legal manuals on New York State DWI defense, and focus on the best
practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide
clients, such as my fee agreement and ways to avoid misdemeanor probation. I was
selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI
Defense based on my experience, contributions, and professional standing.
607.229.5184
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