In A New York DUI And DWI Case Does The Two Hour Rule Exclude Testimony of a Refusal

In New York DWI and DUI cases there used to exist a two hour rule which applied to the exclusion from evidence of a chemical test result that was performed more than two hours after the arrest of the motorist. This rule was also applied in the New York DMV to exclude into evidence at the DMV refusal hearing a refusal to take a chemical test. There has been a shift in the law that goes back several years that states that a chemical test performed 2 hours after the arrest is admissible at trial and a more recent shift in the DMV refusal hearing rules not to exclude a refusal that was more than two hours past the arrest.

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Question: Can You Appeal A New York DMV Chemical Test Refusal Hearing?

Answer: Yes you can appeal a New York DMV chemical test refusal hearing decision. Once you have completed the refusal hearing at the DMV you can send in a written appeal. You must download form entitled New York State Department of Motor Vehicles ADMINISTRATIVE APPEAL FORM (AA-33A). Once you have properly filled in the form you must pay the $10 appeal fee. I would suggest you indicate in the appropriate box on the form that you do want to have the transcript from the hearing ordered and included. You will have to pay for the transcripts. The appeal form must be fully completed.
There are several other steps involved in appealing a New York DMV chemical test refusal hearing decision.
If you wish to discuss this issue or any other please contact us at 917-744-6593.

New York DWI/DUI Arrest, How To Deal with DMV Chemical Test Refusal Hearings

I have found that over the course of my practice of law in New York since 1986 that DMV Chemical Test Refusal Hearings are an area that is very misunderstood by the general public. That said there is a logical way to prepare and defend these matters.
First, contact an experienced criminal defense attorney as soon as possible if you are facing a Chemical Test Refusal Hearing. The preparation for the hearing should begin immediately. The refusal hearing will be scheduled by the criminal court at your arraignment or first court appearance. The refusal hearing will be scheduled within a couple of weeks or less from your first court appearance.
Second, make sure that you detail all of the facts so that your attorney is aware of any documents or additional witnesses that should be spoken to and perhaps called to appear at the refusal hearing.
The attorney should also discuss with you your role at the refusal hearing and what if anything you would testify to at the DMV refusal hearing.
Many times the first appearance at the New York DMV refusal hearing will not resolve your case if the police officer is not present. In that case you may be eligible for reinstatement of your driving privileges.
A second hearing date will be scheduled through the mail some months later.
I will discuss the other issues with the second visit to the DMV on a later post.

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