Saturday, March 23, 2013

The DMV Refusal Hearing

At the arraignment, the Court advises the defendant and counsel of the date and time of the Refusal Hearing. The hearing must be conducted within 15 days of the date of that arraignment. The Refusal Hearing is held at a local DMV office and presided over by a DMV Administrative Law Judge.

At the Refusal Hearing, the following  (4) issues are heard :

1. Did the police officer have reasonable grounds to believe that the defendant had been driving under the influence or while his/her ability was impaired,
2. Did the police officer make a lawful arrest,
3. Was the defendant given sufficient warning, in clear or unequivocal language, prior to the refusal, that the refusal to submit to the chemical test would result in the immediate suspension and subsequent revocation of the defendant's license or privilege to operate a motor vehicle in New York.
4. Did the defendant, after reasonable grounds have been shown, following a lawful arrest, and following sufficient warning of the consequences, then refuse to submit to a chemical test.

Following the direct testimony and cross examination, the Administrative Law Judge may make  an immediate decision or reserve decision. If the Administrative Law Judge determines that all four (4) issues have been proven, the defendant's license or privilege to operate a motor vehicle in New York State will be immediately revoked for a period of either one (1) year or eighteen (18) months depending upon certain factors.

If the Administrative Law Judge determines that the evidence failed to establish ALL four (4) factors, the temporary suspension must l be immediately terminated.

A person in this position should always retain counsel for the Refusal Hearing. Often, there are one or more elements that a skilled criminal defense lawyer can attack in an effort to avoid the mandatory revocation.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.