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 :
Did the police officer have reasonable grounds to believe that the
defendant had been driving under the influence or while his/her ability
2. Did the police officer make a lawful arrest,
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.
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
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.