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Queens DWI Attorney

DWI Refusal

Any driving while intoxicated (DWI) case has two components. First, the person accused of DWI must worry about the administrative action automatically brought by the New York State Department of Motor Vehicles (DMV) to suspend the driver's license. This suspension can be contested in a proceeding before an Administrative Law Judge.

Secondly, the person accused of DWI must face the criminal charges in court. A punishment can be imposed in one, both, or neither. If a punishment is imposed in both, the punishments run parallel to each other.

Queens DWI Refusal Attorney

If you were arrested for DWI with a refusal to submit to a breath, blood or urine test then contact an attorney at the Law Office of Rochelle Berliner. Many refusal cases can be won at trial. Having an attorney well versed in this area of the law often leads to a better result.

Call Law Office of Rochelle S. Berliner for a free and confidential evaluation of your DWI case in Queens or throughout the greater New York City area at 718-261-5600.


DWI Refusal Information


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Administrative Suspension of DWI Refusal

For a first DWI refusal, your driver’s license will be suspended for one year administratively through an automatic process with the DMV. The suspension is 18 months for a CDL driver. If the suspension is upheld it will appear on your driving record as a civil finding that you were DWI.

If the suspension is upheld, you will also be required to pay a $500 fine for violating New York’s implied consent law plus a driver responsibility assessment of $250 a year for 3 years.

For a second or subsequent refusal, you face a 18 month suspension (10 years if you have a CDL). If the suspension is upheld you will also be required to pay a fine of $750 and a driver responsibility assessment of $250 a year 

This same penalty also applies if you refused the chemical test for the first time but you were convicted of DUI within the last five years.

You have the right to a Due Process hearing before a DMV Administrative Law Judge. Although the DMV administrative hearings are difficult to win, if a mistake was made in your case then the suspension might be invalidated. Also, the information gained during the hearing from the witnesses against you can be used at trial to help you win the criminal case.


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The Implied Consent Rule in a DWI Case

Because DWI is a serious crime and alcohol content dissipates after the arrest, operators of motor vehicles in New York are deemed to have issued consent to chemical testing under Vehicle and Traffic Law § 1194(2)(a).

The statute is designed to encourage those suspected of alcohol-related driving offenses to comply with requests to submit to chemical tests in order to obviate the need for securing court orders authorizing blood tests (see Prince v. Dep't of Motor Vehicles, 36 Misc. 3d 314, 316, 945 N.Y.S.2d 843, 845 (Sup. Ct. 2011).

Section 1194 “grants a motorist a qualified right to decline to voluntarily take a chemical test” after being warned that a refusal “will result in the immediate suspension and ultimate revocation of the motorist's driver's license for one year,” along with evidence of the refusal being admissible at any subsequent criminal trial. Id. (citing People v. Smith, 18 N.Y.3d at 548, 942 N.Y.S.2d 426, 965 N.E.2d 928).

In general, “an uncounseled waiver of the statutory right to refuse the test ... provides no basis for suppressing the results.” Id. quoting People v. Shaw, 72 N.Y.2d 1032, 1034, 534 N.Y.S.2d 929, 531 N.E.2d 650 [1988].

Before the prosecutor can admit any evidence that the driver refused the chemical test, the prosecutor must show that the test is relevant. To be relevant the evidence of refusal must meet several basic requirements including a showing that the refusal took place within two hours of the arrest and the driver was informed of the consequences of refusal.


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Two Hour Rule for a DWI Refusal

Under VTL 1194(2)(a), evidence of a defendant's refusal to submit to a chemical test is admissible at trial if the prosecutor is first able to make a showing that the requests for the tests were made within two hours of the arrest.

There is now an "emerging consensus" that the two-hour rule is inapplicable to the refusal provision of VTL § 1194(2)(f). See Prince v. Dep't of Motor Vehicles, 36 Misc. 3d 314, 316, 945 N.Y.S.2d 843, 845 (Sup. Ct. 2011).

"Relying on this judicial trend, the Department of Motor Vehicles (DMV) in June 2012 abandoned its long-standing position that evidence of a driver's refusal to take a chemical test was inadmissible at DMV hearings if the refusal occurred more than two hours after the driver's arrest (See, N.Y. Dept. Motor Vehs. Counsel's Office, Time Limitations for Chemical Test Refusals, Opinion No. 1–12, June 29, 2012)."

The DMV opinion stated:

In light of these recent and well-reasoned holdings that the two hour-rule is inapplicable to refusals, it is the Department's view that a motorist who refuses to submit to a chemical test more than two hours after the time of arrest is deemed to have refused [and therefore will have his license suspended], assuming that the other statutory elements of a refusal (i.e., reasonable grounds, arrest, warning and refusal) are established at the hearing. People v. Harvin, 40 Misc. 3d 921, 928, 969 N.Y.S.2d 851, 856 (Crim. Ct. 2013).

Filing and litigating a motion to addess this issue requires more than just showing that the two-hour rule was broken, but it also requires bringing forward all issues that show why the facts of the particular case show a prejudice to the driver because of the delay. 


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Adequate Warning of Consequence of DWI Refusal

Next, the prosecutor must show that defendant was given adequate warning of the consequences of the refusal. VTL 1194(2)(a); People v. Brol, 81 A.D.2d 739 (4th Dept.1981), affd as modified 89 A.D.2d 813 (1982).

The defendant persisted in his or her right to refuse the chemical test. VTL 1194(2)(f); see also People v. Thomas, 46 N.Y.2d 100, 108 (1978), app dsmd 444 U.S. 891 (1979).

Such persistence requires repetitive or unwavering conduct, a steadfast position, shown by a continued position despite opposition. Prince v. Dep't of Motor Vehicles, 36 Misc. 3d 314, 316, 945 N.Y.S.2d 843, 845 (Sup. Ct. 2011).

While a driver initially may consent to a chemical test and then definitively refuse when actually administered the test, if the driver affirmatively volunteered to submit to a test, but only later, at the most heightened point of distress and agitation, was he or she asked to submit to a test. Id.

The evidence of refusal may not be sufficient when the police never countered the response to that one request with any opposition, further explanation of the implications, or encouragement; the police never broached the subject again. 


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Additional Resources

Penalties for DWI Alcohol or Drug Testing Refusals — Visit the official DMV website to learn more about the administrative and court ordered penalties in a refusal to submit to chemical testing of the blood, breath or urine after a DWI arrest in Queens, N.Y. or the surrounding areas. Also read statistics about the percentage of individuals that refuse to submit to a breath test.


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Finding a DWI Refusal Attorney in Queens, N.Y.

If you need to find a DWI refusal attorney in Queens, N.Y., then contact the Law Office of Rochelle S. Berliner. The prosecutor will try and use the fact that you refused to argue that you were conscious of your guilt. Our New York criminal defense lawyer can argue other reasons why you refused that are consistent with your belief that you were innocent of DWI.

Ms. Berliner is an experienced and aggressive attorney in Queens N.Y. who is ready to represent you and fight for the best result in your DWI case. Call 718-261-5600 or submit an online form today to take advantage of a free, confidential consultaiton that will allow Law Office of Rochelle S. Berliner to review your case.

Free Consultation

Submit your information using this form to schedule a free consultation with attorney Rochelle Berliner.

Name* Phone* Email* Subject* Message*

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