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| Refusals Can Be Actions and Not Words |
The Judge Suppressed the Defendant’s DWI Refusal
to take a chemical Intoxilyzer Breath Test Based on Improper/Incomplete Refusal Warnings.
Why?
After a DWI Arrest the Police Must Advise of the Consequences of a Refusal to Give Breath
In People v. Midence, the police officer explained to the defendant that he was being arrested for driving (operating) a motor vehicle while impaired (DWI and DWAI) and properly advised of the consequences of the refusal.
In fact, the officer read to the defendant, two times
“refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege whether or not you are found guilty of the charge for which you are arrested.”
In addition, he added (the consequences), which are how they use the refusal against you at trial:
“your refusal to submit to a chemical test, or any portion thereof, can be introduced into evidence against you at any trial proceeding or hearing.”
And that’s why bringing this out (the refusal) at a trial can be so bad for most people because they are telling the jury you Did NOT take the test due to a guilty conscious.
Remember: The Refusal Can Be Used as Evidence of Your Guilty Mind
This Officer Repeated the DWI Refusal Warnings
This officer attempted many times to get a clear answer, because he wanted to get a NO!
A clear and unequivocal "NO" would solidify the refusal and it's use later at a trial.
BUT this defendant didn't and wouldn't state "NO I won't take your test." That would have been a persistent refusal.
The DWI Defendant Kept Asking Questions and Demanding a Lawyer
but defendant kept requesting a lawyer, saying that he did not know what to do, wanted the advice of a lawyer before deciding and complained numerous times that the procedure did not make sense.
In People v. Midence the officer did NOT tell the defendant that his actions or lack of response to his question, could be interpreted or deemed a refusal.” A refusal is admissible “only upon a showing that the person was given sufficient warnings, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.” Matter of Gargane v. DMV, 118 AD2d 859, 860 (2d Dept. 1986); V.T.L §1194(2)(f).
In People v. Smith, 18 NY2d 544, 551 (2012), the Court of Appeals ruled “before the police can deem the defendant’s conduct or non-response to their request to take the chemical test a refusal, they must notify (emphasis added) the defendant as such.”
The Police Have to Tell You Your Actions are Being Counted as a Refusal
The Court found that this defendant’s asking questions or asking for an explanation of alternatives, cannot be viewed as a persistent refusal. See People v. K.S., 2018 NY Slip Op 28358 (J. Drsydale) (New York Co., October 19, 2018). Here, in this case the defendant kept asking questions, and never gave an unqualified “no” answer. All they (the police) want is a clear NO I won't take your test.
Accordingly, defendant’s request to suppress his refusal based on improper and incomplete refusal warnings, is GRANTED.
What can we learn from the Midence DWI refusal case?
If you demand a lawyer and keep asking for explanations AND the police don't tell you they are considering this action by you as a REFUSAL, you can try and move to suppress YOUR REFUSAL at a trial.
Newman and Cyr is a boutique law firm focusing on Traffic, Criminal, and DWI and DWAI drug defense in Upstate New York. If you would like a free consultation concerning your charges either call, email, or fill out the form on our website.
607-229-5184
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