Refused a Breath Test: How to Get Your License Back?

Lots of calls about how to get a license after a DWI refusal

I have spent way too many hours going over and over the same things with DWI refusal callers. I make these videos to bring some clarity to how the DWI refusal in criminal court is separate but yet so important to the licensure.

New York Refusals are not illegal but they do have consequences.


The New York DWI refusal is unlike any other state. In some states the refusal itself is a crime with separate penalties. Written into the New York legal statute is a very important piece of information. Two penalties with the breath test refusal: one year license revocation (New York) and consciousness of guilt instruction from judge to the jury. That is the reason for your refusal (they can infer) is you were conscious of your own guilt. And one other provision that many people know nothing about.

The New York DMV allows NO license UNTIL a plea to a VTL 1192 Offense

You will not get your license or license privileges back UNTIL your criminal case is completed, and has a plea to a VTL 1192 offense. The 1192 offenses are either:


DWAI alcohol VTL 1192 (1) Driving while impaired by alcohol

or

DWI alcohol (common law) VTL 1192 (3) Driving while intoxicated


This plea of guilty to one of these can be by three means:


1. bench trial with the judge (non-jury trial)

2. plea bargain with the prosecutor (either the DWAI or DWI)

3. jury trial

Trials with DWI refusal cases are generally better to defend because there is NO BAC number. 

The prosecution has NO blood or breath blood alcohol concentration to hang their case upon. So the whole case hinges on the police testimony (opinion) of law enforcement. In some cases with witnesses they can testify as well either to your sobriety or intoxication.

All DWI common law (opinion) cases are a matter of degree.

In other words what was the degree of your impairment by alcohol? Were you merely impaired or truly intoxicated by alcohol. That is the million dollar question.