If you refuse the chemical breath test, at arraignment the court will seize your driver's license and schedule a DMV Refusal Hearing. At that hearing, the police will try to convince a judge to revoke your license for a year. Let us assume, for a moment, that you lose the DMV Refusal Hearing, and your license is revoked for a year.
What happens, then, if you win your DWI case at trial? Do you get your license back? Can you get a conditional license?
Possibility 1: After a trial, you are completely acquitted of any drinking and driving-related offense. In other words, the jury finds you “not guilty” of DWI, and “not guilty” of DWAI.
If that happens, the court will not sanction you in any way. After all, you are “not guilty.” On the other hand, the DMV license revocation will stay in effect for a year. Why? Because from the DMV’s perspective, you successfully blocked their prosecution by refusing the chemical breath test. The DMV does not have to give you your license back after a full acquittal, and they won’t. It will be a year before you can legally drive again.
Possibility 2: That you are found guilty of a drinking and driving-related offense. In other words, the judge or jury finds you “guilty” of either DWI or DWAI.
If this happens, and if you have no prior drinking and driving-related convictions on your record, you will likely receive a letter from the DMV about one month after your conviction. That letter will likely tell you that you are eligible for a conditional license if you sign up for the Impaired Driver Program. Why are they willing to give you a conditional license if you are convicted? Because you did not successfully “frustrate” their prosecution by refusing the chemical breath test.
Possibility 3: That you are found guilty of a drinking and driving-related offense (such as DWI or DWAI) and you have a prior DWI-type conviction within the last five years.
If you have been convicted within the last five years of DWAI, DWI, or any other DWI-type offense, you will not be eligible for a conditional license.
The decision made by the DMV about whether to allow you to have a conditional license becomes less easy to predict if you have multiple drinking and driving-related offenses on your record.
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Militello Law Firm, PLLC
2480 Browncroft Blvd.
Rochester, NY 14625
Phone: (585) 485-0025
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