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ABKLaw BLOG: DWI and the Licensing Consequences of a Refusal to Submit to a Chemical Test
#ABKLaw Blog from our Partner John Esposito
DWI and the Licensing Consequences of a Refusal to Submit to a Chemical Test
The dilemma that most often arises by an individual who has been stopped or arrested for Driving While Intoxicated is: Should I submit to a chemical test (breath test) or exercise my right to refuse? While there are rights attendant to consulting a lawyer at the time, as a practical matter most individuals are left to making the decision on their own.
While the experts and experienced lawyers opining on this issue will often have very different views, most would probably agree that each situation is fact specific and there is no clear answer in many cases. There are probably more books, lectures and other source materials devoted to DWI charges than most other areas in the practice of criminal law.
In New York one very important consideration that is not in dispute is the consequence as to your driver’s license resulting from choosing between submitting to a test and a refusal. Most critically is the difference in the ability to obtain a conditional license during the pendency of your case that allows you to drive to and from work and in other limited situations.
In most cases where a person has submitted to a test (with some exceptions) that individual will after approximately 20 days be given the opportunity to enroll in the DDP (Drunk Driving Program) and apply for a conditional license.
Licensing Consequences as to a Refusal
A refusal in New York will subject an individual to two separate and distinct proceedings. The first is the criminal case handled in criminal court and the second a civil proceeding addressed solely to licensing at DMV. In short, unless said individual prevails at a mandated “refusal hearing” and actually gets his privileges restored, that individual will not be able to get a conditional license and be unable to drive under any circumstances for a year. Because it is entirely separate matter, even having your criminal case dismissed does not change the potential licensing consequences upon a refusal.
The legislature intentionally sought this result as a means of inducing people to comply with a request for testing. The legal mechanism that allows this result comes by virtue of the fact that a person who submits to testing can participate in DDP. Conversely, a refusal does not allow for the entry in DDP and thus no conditional license is available.
The unfortunate reality of the above is that people may feel compelled not to challenge their criminal case because if they do enter a plea to a DWI (or Impaired) they then have a conviction that also serves to allow for participation in DDP and in some sense can knock out the refusal consequences.
This was not intended as advice as to whether or not to “refuse” but simply to educate as to the potential licensing consequences attendant to a DWI arrest.