2 Levels of DWI Test Refusal in New York

The chemical/breath test that is commonly called the Breathalyzer test is typically performed at a police station. It should be noted that there are two levels of refusal with respect to chemical testing in New York. 

1. Refusal of "Screening Test" at Roadside 

The first is refusal on the side of the road, which means refusing to take what is commonly called the "screening test"; the results of this test are inadmissible at court. The results of the screening test simply allow the officer to have probable cause to take a driver back to the station and conduct a more accurate breath test, using a Breathalyzer machine, to see if your blood alcohol level is within the range that they are seeking in order to charge a DWI. 

A driver may refuse to submit to the screening test on the side of the road—which, again, is inadmissible at trial. If you are cooperative in terms of taking the Breathalyzer test at the station then your refusal to submit to a side of the road test is charged as a simple traffic infraction.

2. Refusal of the "Breathalyzer or Chemical Test" at Police Station 

A so-called breathalyzer/chemical test result is, as noted, much more reliable than the result of a side of the road test. During side of the road testing, drivers are observed for fifteen minutes to make sure that they have not consumed any alcohol during a certain amount of time, and they are also observed for one minute to make sure they have not smoked anything prior to taking the test.

 If you refuse a chemical test at the station, you have committed a civil violation of New York Vehicle and Traffic Law Section 1194. This puts you instantly at risk of having your license suspended for one year, after an opportunity for a refusal hearing, regardless of the underlying factors in the case.

DWI Test Refusal Hearing in New York  

Timing and Procedure of the DMV Refusal Hearing

Within fifteen days after refusal of the chemical test, the law requires that a court set a refusal hearing date for the driver with an administrative law judge at the Department of Motor Vehicles (DMV). The arresting officer is expected to show up for the hearing, which generally takes about twenty to thirty minutes. 

The hearing examiner will ask the officer about his conduct—i.e., they generally ask the officer, “Did you apprise the driver of the negative ramifications of not taking this test?” While the officer has to tell you that your license will be in jeopardy if you do not take the chemical test they do not have to tell you that you are going to incur a mandatory $500 fine and your license is going to be suspended for an entire year. 

Also, they do not have to tell you that if you refuse for a second time you will face a $750 fine and your license will be suspended for eighteen months. They do, however, have to tell you that there are negative ramifications to your refusal.

Practice Commentary: Prosecution Easily and Often Meets Burden 

With respect to the refusal hearings that I have participated in, the burden on the prosecution to prove their case—i.e., that the driver was apprised of his or her rights and still refused to take the chemical test—is very low and the hearing officer will generally believe the testimony of the arresting officer. 

In addition, the driver is going to lose their license for a year, no matter what happens in terms of the underlying charges. However, defense counsel should still take advantage of the free discovery opportunities and the opportunity to talk to the arresting officer during this hearing.

Article adapted from partner David C. Bruffett's chapter in "Inside the Minds: Strategies for Defending DWI Cases in New York, 2015 ed. published by Aspatore Books, A Thomson Reuters business.