Today’s #fridayfacts discusses the sanction imposed when a person refuses to submit to a chemical test when arrested on suspicion of DWI.
When a person is arrested on suspicion of DWI in New York, they are given (in most cases) the option of submitting to a chemical test to determine the alcohol content of their breath or blood. This is the “.08” that everyone is familiar with in NY. Defendants can typically opt for a blood draw or a breath test with a scientific instrument.
As an accused, defendants are afforded 5th Amendment protections, meaning there is no obligation to submit to a chemical test. It is optional. However, the New York Vehicle and Traffic Law and DMV Regulations have built-in provisions that can sanction a defendant’s refusal to submit to a chemical test.
Driving in New York is a privilege, not a right. While you have a constitutional right against self-incrimination, you have no such right when it comes to the ability to drive. When someone gets a driver’s license, they agree to be bound by the rules of the road and DMV regulations.
Under those regulations, when a defendant refuses to submit to a chemical test, their driving privilege can be revoked for at least one year—independent of any criminal penalties.
Before revocation, defendants are entitled to a DMV administrative hearing, where an Administrative Law Judge must find four things:
- The officer had reasonable suspicion of DWI.
- There was probable cause for a lawful arrest.
- The defendant was clearly warned that refusal would result in a license suspension.
- The defendant then refused the test.
If all are met, revocation is mandatory. Notably, a refusal revocation stands even if the defendant is later found not guilty in criminal court.
Because of the complicated nature of DWI refusals, it is imperative that anyone accused consult with an experienced DWI attorney familiar with the refusal hearing process.