Thursday, November 6, 2014

The Problems with New York DWI Refusal Cases

Is there JUSTICE or Is there JUST US?

The New York DWI refusal case has very specific and unique issues. Firstly, when you refuse a chemical test of your breath or blood in New York State you are entitled to a DMV administrative refusal license hearing.

The Problems with the New York DWI Refusal

What IF: You Feel YOU Didn't Really Refuse?

YOUR refusal may or may not have been explicit and clear, it may have been based on your conduct with the police as determined by the police, not by you. If they felt you were not fully cooperating, it is a refusal. If they felt you were playing games, it is a refusal. If they viewed your blowing into their machine as without true and honest effort, it is marked by them as A REFUSAL!

I have had clients who were hysterically crying or hysterically laughing or were just not getting their airflow right marked as a refusal. You may not see it that way but it may be seen that way by law enforcement. BTW This is not up for debate. It may however be challenged at the hearing (in front of the judge) but arguing with the police over this is pointless.

Are You Confused About Your Driver's License? Well, You're about to be.

You go to your first court appearance, sometimes it is a midnight or 2:00am Court appearance and the judge decides then and there to take your driver's license. At this point you may or may not have an attorney present. So NO license and NO privileges to drive at all.

In Tompkins County these days they are trying to have assigned (public defender) counsel present at this first (early morning/late night) court hearing. But this attorney may or may not fully explain what is really going on, your license to drive (or privilege if from out of state) is being suspended but then you have to have a DMV refusal hearing to decide if your license will be revoked for one year for the refusal. This next hearing has to happen within 15 days.

ALL Tompkins County Court (Ithaca, Newfield, Lansing, Dryden, etc.) Cases Go to Cortland

If your case begins in any the Tompkins Courts (village, town, or city) this DMV refusal license hearing will be scheduled at the Cortland County Courthouse, 1st floor, in the room next to the soda/juice machine. These hearings are always set on Fridays at 1:00pm. Everyone's hearing is set for that day and time so it could be real busy.

Does Your Attorney Give This Hearing Any Level of Importance?

If all of this wasn't confusing enough, your public defender ahem assigned counsel may or may not show to this hearing or view it as important. Why? you ask, because they are compensated for hearings in which life and liberty are on the line. This is a license hearing, it is non criminal, it is administrative, it involves your license, which is not a right but merely a privilege. They are paid by the county to attend criminal proceedings, if you had a traffic ticket that threatened your license noone is paying to defend that either.

What Happens with a Delayed (postponed/adjourned) DMV Hearing? 

If you do not appear for this first "court" scheduled DMV hearing (by default) you lose your license. If you or your attorney reschedule, you are still suspended (with no credit), and the next hearing is scheduled by the DMV in Albany, NY. This may take 6 or more months to happen.

My advice, hire an attorney early in the process and make sure that your attorney comes to your refusal hearing. It is an opportunity to learn about your case, it's strengths, it's weaknesses, and to have a chance to cross examine the state's prime witness against you.

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

Reviews of Larry Newman:

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers

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