What If I Refused to Take The Chemical Test? –The Truth on Refusal to Breath, Blood, Urine, or Salvia Test

The Legislature of the State of NY has made the consequences of refusing to submit to a chemical test severe.

If a motorist refuses to submit to a chemical test after being arrested, upon his arraignment, his or her driver's license will be immediately suspended by the court. The driver's license will remain suspended for 15 days or until the date of the DMV hearing, whichever comes first. The failure of the driver to appear at the DMV hearing constitutes a waiver and will result in revocation of the driver's license. For those motorists who attend, the hearing is limited to the following four issues:

  • Whether the Police Officer had reasonable grounds to believe that the motorist was operating his vehicle in violation of any subdivision of Article 1192;
  • Whether the arrest of the motorist was lawful
  • Whether the motorist was given sufficient warning in clear and unequivocal language prior to his refusal that his refusal to submit to the chemical test or any portion thereof would result in the immediate suspension or revocation of their license or privileges whether or not they were found guilty of the charge for which they were arrested
  • Whether the motorist refused to submit to the chemical test

If the Administrative Law Judge presiding at the hearing finds that one of the aforementioned was not established the motorist's license would be reinstated. If the Administrative Law Judge finds that all four criteria have been met, the motorist's license will be immediately revoked.

In addition to the revocation, which last for at least one year, there is a civil penalty of $550.00 that is incurred. In those cases where the motorist has a previous test refusal within five years of the present test refusal or has been convicted previously within five years on an unrelated violation of any subsection of 1192, the minimum period of revocation is one year and the civil penalty is increased to $750. These fines must be paid prior to the termination of said revocation but are not required prior to obtaining a conditional license if eligible.* Moreover, the revocation for a refusal will not be terminated upon the successful completion of the Drinking Driving Program.

The most severe sanction for a refusal is that the motorist will not eligible to get a conditional license because the motorist will not be eligible to attend the Drinking Driving Program (DDP). A prerequisite for the DDP is that the motorist has a conviction of any subdivision of Article 1192. That is the motorist must be first convicted of DWI or DWAI in order to qualify for a conditional license if there has been an adverse finding at the DMV refusal hearing. A dismissal of the criminal charge or a plea to any other charge outside Article 1192 will preclude the issuance of a conditional license as the motorist will not be eligible to attend the DDP.

Given the importance of the DMV hearing and severe consequences of an adverse finding, it is imperative that the motorist retain experienced counsel for DMV hearing as soon as possible.