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.

If you have any questions about a DWI, DUI, DWAI, DWAI by drugs please contact us at 917-744-6593 and you will be speaking with an attorney for a free consultation.

New York Department of Motor Vehicle Chemical Test Refusal Hearing For DWI Cases

What to expect at the first appearance to the DMV Chemical Test Refusal Hearing.

At your first appearance to the DMV, the refusal hearing may take place if the arresting officer appears for the hearing. If the officer does not appear at the DMV then as long as the motorist does not have any other suspensions, the administrative law judge will reinstate the motorist’s driving privileges on the spot. If the police officer does appear at the DMV the hearing will take place and you run the risk of losing your right to drive in New York as a result. If the police officer does appear you may ask for a postponement of the hearing. If the judge grants the postponement the judge will continue your suspension until the results of a hearing that will be held several months later.

Does the motorist need an attorney at the hearing?

It is highly recommended that you have your own attorney at the refusal hearing. There are many rules and regulations that an experienced attorney can explain to the motorist and can be a great benefit to the motorist.

If you have any questions or for a free consultation please contact Carl Spector at 212 683 5912 or toll free at 800 879 6410.

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.

If you have any questions or wish to have a free consultation please call 212-683-5912

To learn even more about Carl Spector and what other clients say about me please visit http://www.avvo.com/attorneys/10005-ny-carl-spector-876845.html

Faced With A DWI Charge In New York – Facing Possible Ignition Interlock Device – Use Of Employer-Owned Vehicles

If you have been charged in New York with a DWI / DUI you are facing the possibility that you will have to install an Ignition Interlock Device in your car.

The best way to try to avoid this penalty would be to try to avoid pleading guilty to or being found guilty of a DWI.  The best way to do that would be to consult with and hire an experienced attorney that handles DWI cases in New York.

If however you can not avoid the DWI conviction you may, under certain conditions use an employer-owned vehicle WITHOUT the installation of the Ignition Interlock Device if you:

1. Use the vehicle only in the course and scope of the defendant’s employment;

2. If the employer has been notified that the motorist is subject to the ignition interlock device requirement;

3. If the motorist has provided the Court and the Probation Department with written proof indicating that the motorist’s employer is aware of the ignition interlock requirement and has granted the motorist permission to operate the employer’s vehicle without an ignition interlock device, only for business purposes; and

4. The motorist has notified the Court and the Department of Probation of his or her intention to operate the employer’s vehicle.

If you have any questions about the ignition interlock device or any other aspect of the law or your case feel free to contact us Statewide.

If you have been arrested or charged with a DWI in New York, or New Jersey then call the experienced attorneys with NewYorkDUI.com at 1 800 879 6410 for an analysis of your case. We will provide experienced and personal attention to you and your case.

In New York DWI Cases Why Do The Police Charge Two DWI Charges?

In some cases in New York the police or the prosecutor will file DWI charges against a motorist which contain two separate DWI charges on the same case.  This is common in cases with a breath reading and also common for refusal cases.  The police and the prosecutors are charging you based upon two different legal theories.

The first theory is called the “Common Law DWI” theory.  The second theory is called the “Per Se DWI” theory.  We will talk more about the “Per Se DWI” theory in a later post.

With the “Common Law DWI” theory the police will try to prove that you are guilty of DWI beyond a reasonable doubt based upon their observations of the motorist.  Below are some observational examples that the police often state:

1. Appearance – The police will report that the motorist had bloodshot and watery eyes and that they detected an odor of alcohol was coming from the motorist.

2. Demeanor – The police may report that the motorist was belligerent, sleepy or uncooperative.

3. Manner of Speech – The police will report that the motorist had slurred speech.

4. Motor Coordination – The police report that the motorist fumbled for their paperwork or had poor balance as they exited their vehicle or as they walked.

5. Performance on the Field Sobriety Tests – There are three standard field sobriety tests.  The standard tests are the HGN, One Legged Stand and the Walk and Turn, however the police may employ other tests such as the Alphabet test and or the Romberg test.

The police will present to the court these factors which the prosecutor will argue rise to the level of DWI based upon the totality of the circumstances that the motorist voluntarily consumed alcohol to the extent that she is incapable of employing the physical and mental abilities which he is expected to posses in order to operate a vehicle as a reasonable and prudent driver.

Our lawyers are aware of all the nuances of DWI cases in New York and would be happy to discuss your particular circumstances.  Feel free to call for a FREE CONSULTATION.

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If you have been arrested or charged with a DWI in New York, call the experienced Attorneys with NewYorkDUI.com at 1 800 879 6410 for an analysis of your case. We will provide experienced and personal attention to you and your case.

Refusal Hearing Success in New York

We recently had a great result at a Department of Motor Vehicle Refusal Hearing which we would like to share with you. Our client was charged in New York with driving through a steady red light and a driving while intoxicated, DWI.  After being pulled over by the police officer our client was placed under arrest.  The Report of Refusal filled out by the arresting officer and submitted to the Administrative Law Judge at the refusal hearing indicated that our client had blood shot and watery eyes, and a odor of alcohol on his breath.  The report also indicated that our client refused to take the breath test.

At the first scheduled refusal hearing the police officer did not appear.  As a result we were able to get our client’s driving privileges restored.  The refusal hearing was rescheduled for several months later.  At the rescheduled hearing the police officer once again did not appear.  As you know, if you have been reading our blogs, that at that point the ALJ can rely on the written reports submitted to the DMV to establish that the stop of the vehicle was lawful, that the arrest was based upon probable cause, that the refusal warnings were properly given and that in fact there was a refusal that took place.

Once the ALJ admitted the “Report of Refusal to Submit to Chemical Test” into evidence we objected by stating that the report was insufficient to establish probable cause that our client was driving while intoxicated.  The ALJ agreed with our argument and “closed” the matter.

As a result our client won the refusal hearing, avoided any suspension, does not have to pay the $500 fine and does not have to pay the Driver Responsibility Assessment of $750 which is $250 per year for three years.

We are experienced New York DWI attorneys who know the law.  We are here to protect your rights and your drivers license.

If you have been arrested or charged with a DWI in New York, call the experienced Attorneys with NewYorkDUI.com at 1 800 879 6410 for an analysis of your case. We will provide experienced and personal attention to you and your case.

 

In New York What Happens At My Second DWI Refusal Hearing

Very often in New York when we appear with our client’s at the Department of Motor Vehicles (DMV) office for a refusal hearing a few days after a DWI arrest, the arresting officer does not appear for the hearing.  As a result, our client will get back their driving privileges without a hearing being held.  The refusal charges are Not dismissed at that time.  A new date will be set for a refusal hearing to actually take place.  No actual date is given for the refusal hearing at that time but a new date is sent in the mail for the refusal hearing to take place, usually within three months.

These are the issues at the refusal hearing:

1. Did the police officer have reasonable grounds to believe that you had been driving while intoxicated,

2. Did the police officer make a lawful arrest,

3. Where you given sufficient warning, in clear and unequivocal language prior to the refusal that a refusal would result in the immediate suspension and subsequent revocation of your license or operating privileges whether or not you where found guilty of the DWI,

4. Did you refuse to submit to the chemical test.

If all four elements are not established then your suspension is terminated and your privileges to drive in New York are reinstated.

If the police officer fails to appear at the second scheduled refusal hearing does the motorist  automatically win? Not so fast. The unfortunate answer is no.  The Administrative Law Judge (ALJ) can conduct the refusal hearing without the police officer appearing in person for the hearing.  The Administrative Law Judge can review the police officer’s reports, specifically the Report of Refusal and any other relevant evidence that  has been submitted to the DMV.  As a result of his review of these reports, the ALJ may make a finding against the motorist and determine that all the proper steps were taken by the police officer to prove the refusal to take the breath test.

What is the motorist to do to avoid this result?  At the second refusal hearing, if the police officer fails to appear, the motorist is entitled to an adjournment to subpoena the police officer for purposes of cross-examination.   Then, if the police officer fails to appear at the refusal hearing, then the charges will be dismissed.

We are experienced New York DWI attorneys who know the law.  We are here to protect your rights and your drivers license.

If you have been arrested or charged with a DWI in New York, call the experienced Attorneys with NewYorkDUI.com at 1 800 879 6410 for an analysis of your case. We will provide experienced and personal attention to you and your case.

 

What Is The DWI Implied Consent Rule In New York?

In New York a police officer is permitted to request a motorist to submit to a chemical test and the law provides that:

Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following:

1. Breath,

2. Blood

3. Urine, or

4. Saliva, for the purpose of determining the alcoholic and/or drug content of the blood.

When an authorized request is made, a motorist is then said to have given his or her “implied consent” to submit to the chemical test.

A refusal to submit to a test after a proper request carries mandatory administrative consequences involving the loss of driving privileges and a civil fine (regardless of the outcome of any related DWI or DWAI charges in court) and in the event of such a refusal the police officer or district attorney may apply to a court asking it for an order to compel the motorist to submit to a chemical test.

In order for a police officer to lawfully request a chemical test from a motorist the police must have a legal reason to pull over your vehicle in the first instance.

Our attorneys are skilled and experienced to analyze your case and to help you fight your case.  We are able to cross examine police officers in the areas that require great skill and knowledge.  As former prosecutors we know where to look for the weaknesses of each case presented by the police.

If you have been arrested or charged with a DWI in New York, call the Attorneys with NewYorkDUI.com at 1 800 879 6410 for an analysis of your case. We will provide experienced and personal attention to you and your case.

Can A New York Refusal Hearing Be Postponed?

Refusal hearings in New York are held in a local Department of Motor Vehicles office such as the local New York City office located at 19 Rector Street 2nd Floor New York, New York. These hearings are conducted by Hearing Officers also known as Administrative Law Judges.

Refusal hearings are usually scheduled within two weeks of your DWI arrest in New York. Motorist should attend and actively participate with their attorneys in the preparation of and in the refusal hearing itself.

A motorist is entitled to attempt to adjourn (postpone) a refusal hearing by contacting the hearing officer responsible for their particular hearing or by contacting the Safety Hearing Bureau or the Division of Vehicle Safety.
In order to be successful in the attempt to obtain a postponement of your refusal hearing the request must be:

1. Received by the DMV at least 7 days prior to the scheduled date of the hearing,
2. No prior requests for a postponement were made,
3. The request is made for good cause.

The granting of the postponement is discretionary and not automatic. Therefore, the postponement is not guaranteed.

If an adjournment (postponement) of your refusal hearing is granted this does not lift the suspension that was imposed by the judge. The suspension pending the results of the refusal hearing continues and the additional suspension time will not be credited towards any revocation period ultimately imposed by the DMV for the chemical test refusal, if there is one.

A motorist is entitled to bring with them an attorney to represent them at this hearing. Our law firm has represented many clients before the DMV. We strongly suggest that you call our office to discuss retaining our services for the refusal hearing. Do Not Go It Alone!

If you have been arrested or charged with a DWI in New York, call the Attorneys with NewYorkDUI.com at 1 800 879 6410 for an analysis of your case. We will provide experienced and personal attention to you and your case.