Saturday, August 9, 2014

Winning a DMV Refusal Hearing: Police Officer Must Match Papers

YOU Gotta love this! JUST SAY NO!

Last week I had one of those days. Everything was going right, I was winning. Believe me as a DWI defense attorney I have my share (plenty) of losing or trying to lose gracefully days as well.

DMV Refusal Hearings from Steuben and Chemung County DWIs Go to Painted Post

My first stop was a NYS DMV refusal hearing at the Town of Erwin building which if you look at the google maps isn't really in Erwin but actually in Painted Post, NY. It is right down the road from the Painted Post Harley Davidson and the brand spanking new Hampton. This area is really booming.

The judge holds all the hearings in the same big room. It is nice because it is modern i.e. central heat and air, clean new bathrooms, and comfortable chairs. This is in contrast to the Cortland DMV refusal hearings which take place in a tiny old room of the Cortland County Courthouse with no ventilation (sweltering in summer and hotter in winter).

Some Attorneys Say Why Bother Going?

I get mad sometimes at my fellow lawyers who just give up or have given up on attending these DMV hearings. Why bother they quip? You're only going to lose. Really? Have you ever won? btw It does happen. Is it a big deal? I think so, your client loses their privileges to drive a car for ONE YEAR.

That to me is a BIG deal.

You can win a number of ways but as they say you gotta play to win. You can't win or more like you can never win if you don't show up. The default is a lose. But if you show up and are ready to go a number of things can happen:

1. The cops (police/trooper/deputy) may not show = you get your license back.
2. The cops show but are not prepared = you may win or lose.
3. Some of the cops show but not all the cops show = you may win big time.

I recently had choose number three happen, and it has happened more than once. This was a hearing that was re-scheduled a number of times. The judge had allowed it and after all he is the judge. So this hearing the deputy finally shows, and I finally have ALL the paperwork. Turns out the Deputy that read the DWI Refusal Warnings, and signed the paper stating they gave them was NOT here.
The STOP cop was here but NOT the BTO (breath test operator) who gave the warnings.

Violation ONE: My Client's Right to CONFRONTATION (6th Amendment to the Constitution)

My client has a right to face his accusers. To face all the police, especially the ones accusing him of this infraction. To be able to cross exam them as to what they did and said to him.

Violation TWO: My Client's Right to NOTICE of Penalties for Refusing a Chemical Test

To face those saying that he had NOTICE OR was given proper, clear, and understandable NOTICE. That he knew the consequences of his refusing the chemical test.

This was a DWI case that on it's face was HORRIBLE.

Car half on the road and off the road;
My client was in a daze, barely awake, maybe even unconscious;
When the cop awoke him he gave the cop the finger;
and if you can imagine it just got worse from there,,, BUT

He still got a DWAI (driving while ability impaired), and we still won the Refusal Hearing, so no final license revocation. Many hearings, over a year But success never the less.

My disclaimer: I do not win all my cases, no attorney wins all their cases. We do our best with the cards we are dealt or as in DWI cases the facts as they are. I will say that in most cases showing up is an advantage. In some situations waiving (giving up) the DMV hearing is in your best interests. Everything must be analyzed, evaluated, and weighed on a case by case basis.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

I am certified in Field Sobriety and Breath Alcohol Testing, and an active member of the National College of DUI Defense (NCDD). My online materials include over 500 blog posts, dozens of articles, and over 500 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. 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.