REFUSING A BREATHALYZER TEST IN NEW YORK CITY

 

 

Where a motorist, after being warned of the consequences, refuses to take a requested chemical test, his or her license is immediately suspended (at arraignment) and, if the defendant subsequently loses his or her Refusal Hearing, revoked for refusal to submit to the chemical test (most likely a Breathalyzer or similar machine). NY VTL 1194(2)(b)(1). Please view the diagram at tilemandcampbell.com to see specific revocation periods. Where a defendant refuses, the officer must prepare a “Report of Refusal” which is given to the judge at arraignment.


The arraignment court is then required to temporarily suspend the defendant’s license pending the outcome of a DMV Refusal Hearing. VTL 1194(2)(b)(3). (Note: in New York City arraignment usually occurs within about 24 hour, The arraignment court must then notify the defendant of his or her “Refusal Hearing” date. In that regard, VTL 1194(2)(b)(4) requires that the arraignment court provide the defendant with a scheduled Refusal Hearing date.


The Refusal Hearing is an excellent opportunity for your attorney to cross-examine the officer without the prosecutor present. Because the officer need not appear but instead, may simply provide his report, it is sometimes wise to subpoena the officer to the hearing. It is also miportant to obtain the minutes of the Refusal Hearing so the police officer may be cross-examined at the DWI trial.