If you refused the breathalyzer test, there will be a DMV hearing. This is usually scheduled within 15 days of the arrest. If you don’t show up, then your license will be automatically revoked. In probably 90% of these hearings, the officer does not show up on that first date. If you are there and the officer is not, the Motor Vehicle Bureau will adjourn the hearing; and because it’s the officer’s fault, the Motor Vehicle Bureau hearing officer will actually give you back your full driving privileges until the date of the next hearing, which usually won’t be for two or three months. In practice, most people who have refused to take the breathalyzer do get their license back for a couple of months while they wait for the second hearing.
Can The DMV Hearing Ever Be Won Or Is It A Lost Cause?
It depends on many different factors. The main issue that’s involved in the DMV hearing is whether or not the motorist was properly advised that his license would be revoked if he refused to take the test. Many times there is a language issue, and many times the officer didn’t do it correctly. And again, more than likely, the officer never shows up, and the hearing officer is going to use the officer’s records rather than have the officer actually testify. There is a good chance of winning those hearings.
You certainly have nothing to lose by attempting to get a hearing. But what you should always remember is that this is separate and apart from the court. You may be able to win the DMV hearing based upon your refusal or non-refusal to take the breathalyzer, and then later on in the criminal court, if you are convicted of DWI, then your license would be revoked by the criminal court. So it’s really possibly only a temporary victory.
Are Restricted Licenses Available For People Who Have Had Their Driving Privileges Suspended?
Yes. These are very common. In New York, we have what’s called a conditional license. That is issued, typically, in the case where the court suspended the driver’s license during the pendency of the case. These cases usually take several months, so your license is suspended during that period, and you don’t get any credit toward any subsequent revocation or suspension. If the court suspends your license because the reading was over 0.08, within one month the Department of Motor Vehicles will send you a form indicating that you can now get a conditional license from the Motor Vehicle Bureau.
This is with the expectation that you are going to do certain other things that will be covered later and ultimately get your full license back, regardless of the conviction. So you can expect that 30 days after you first go to court, the Motor Vehicle Bureau will notify you that you are eligible for a conditional license. It’s very important that your attorney make sure that the court clerk sends this information to the Motor Vehicle Bureau; otherwise, there can be quite a delay in your getting it.
What Are The Driver’s License Consequences Associated With A Chemical Test Refusal In New York?
In the arrest report, it will either say, “He took the test, and this was the reading,” or it will say, “He refused.” If there is a refusal, that precipitates the suspension and then subsequent Motor Vehicle Bureau procedure. If there is a reading above 0.08, the judge will suspend your license just based upon that, without regard to the Motor Vehicle Bureau, pending the determination of the case but, again, subject to you getting a conditional license.
Is The Chemical Test Refusal Suspension On Top Of The Suspension For A DWI Conviction?
First of all, the Motor Vehicle Bureau’s action is a revocation, and that’s even worse than what the court does because if your license is revoked by the Motor Vehicle Bureau, while you can get a conditional license, you cannot complete the Drink and Driving program and get your license back before the mandated six months. The Motor Vehicle Bureau issue is actually a worse problem than even a revocation by the court because if it’s a court revocation, you are allowed to get a conditional license, take the Drink and Driving program and get your full license back much sooner than the full six months based upon a lot of different conditions.
Is Someone Ever Required To Install An Ignition Interlock Device Before Trial?
No. There is no provision in the law for that. The only way that would occur, prior to a sentence imposing that device, is if it was part of a plea bargain situation with the district attorney, but there is nothing in the law that mandates you getting an interlock device while the case is pending. You can’t be required to get the interlock device until you’ve actually been convicted, and that would be part of the sentencing.
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