DUI/DWI in New York and Refusal Hearings, Part 2

January 30, 2012

We've been discussing some legal trials and administrative tribulations faced by our client - you'll remember that he'd allowed his vehicle to become intimate with a tree under circumstances the police found suspicious. Following a 'report of refusal' alleging that our client had refused to take a chemical test of his blood alcohol content, and an initial hearing at which the arresting officer didn't appear, our client was sent on his way. His license, which had been suspended, was reinstated, and everything was fine, license-wise.

But only for the moment. The man was still facing criminal charges, and even if the criminal action should end in a favorable disposition (it didn't) the administrative proceeding was bound to go on. In fact, a favorable disposition on the underlying charge would just increase the stakes at a refusal hearing. We are by no means the first to point out that if you win at trial, but lose a refusal hearing, you aren't eligible for any conditional or restricted license. So in practical terms, you may find yourself worse off than if you'd been convicted.

Our client didn't have that problem. As we mentioned last time, he ultimately made his peace with the authorities, and took his lumps, including a six-month license revocation (with a conditional license to get to and from work).

The decision our client had to make was whether to go ahead with the refusal hearing. He was of course already on a six-month revocation for DWI. If DMV found that he'd refused the chemical test, he was looking a year on top of that. However, a refusal revocation can run concurrently with a DWI revocation. This meant that if he were to withdraw his request for a hearing - in other words, admit a refusal - he would get credit for every day of the refusal revocation that overlapped with the DWI revocation.

Our client didn't withdraw his request for a hearing. And time dragged on. So much time that he hoped DMV had forgotten about him. By the time he received the notice of his new hearing date, the question of overlapping revocations was moot, and our client was looking at an entire year's revocation if he lost.

He wasn't in the same position he'd been in at the time of the first hearing, either. Then, he had been innocent of DWI in the eyes of the law. Now he was guilty of DWI. Because of that he couldn't argue certain things at the hearing. Specifically, he couldn't argue that the officer didn't have probable cause to require him to take the test, since by pleading guilty he'd already admitted in court he was drunk.

On the other hand, his conviction meant the situation wasn't as dire as it might have been. DMV would lump this revocation in as one more consequence of the conviction and, because of that, he would get a conditional license for any revocation.

This was the posture going into the hearing. Again, the officer didn't appear. The administrative law judge is under these circumstances
allowed to proceed based on the officer's paperwork, even though that paperwork constitutes hearsay. That paperwork does have to be facially sufficient, however - in other words, it can't be obviously deficient. In our client's case, the paperwork failed to establish to the satisfaction of the administrative law judge that our client was properly asked to take a chemical breath test.

Particularly telling was testimony that the police officer spoke to our client at a hospital. Our client was never taken to a police station. Hospitals do not normally have the wherewithal to provide chemical breath tests.

The administrative law judge closed the case, and our client drove home.