“I have your back”
To win a DMV Refusal Hearing, the testifying police officer has to demonstrate that:
(1) she had reasonable grounds to believe the defendant was operating a motor vehicle in violation of the DWI statute (VTL 1192);
(2) she made a lawful arrest of the defendant;
(3) she read the defendant the DMV Commissioner's DWI Refusal Warnings in "in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person's license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made;" and
(4) the defendant refused to take either a chemical breath test or blood test.
If the police officer fails to do any of those things, you win and you get your license back. So how often does this happen? I was at a conference a while back, and a retiring DMV Administrative Law Judge was speaking. She told the audience that drivers get their license back after a Refusal Hearing less than 1% of the time. In other words, if you don't have a lawyer, there is no way you are walking out of there with your license.
What if the police office officer doesn't show up? Do I win?
If the police officer doesn't come to the first Refusal Hearing, the Administrative Law Judge will lift the suspension of your driver's license (so long as the refusal is the only reason your license is suspended). The ALJ will then adjourn the hearing, but a date doesn't get set right then. A few weeks later you and your lawyer will get a letter from the DMV in Albany scheduling a new Refusal Hearing Date.
If the police officer doesn't come to the second DMV Refusal Hearing, the ALJ will hold what is called an Adduci Hearing (Matter of Gray v. Adduci, 73 N.Y.2d 741, 742-43, 536 N.Y.S.2d 40, 41 (1988)). If the police officer has submitted a written Report of Refusal, and if that Report is filled out properly and makes a prima facie case that the requirements (above) are met, then you can STILL lose the refusal hearing... even if the police officer fails to appear for a second time.
The only way to win at a DMV Refusal Hearing is to have an experienced DWI attorney with you. We know the deficiencies to look for in the Report of Refusal, and we know the arguments that should be made to the judge if the police fail to appear.
If you have been arrested for a DWI or any other crime near Rochester or Geneseo, call The Militello Law Firm. We can help, and we want to hear from you. (585) 485-0025.