Refusal Hearings in NY

Refusal Hearings in NY – What to Expect

Refusal Hearings in NY – What to Expect

DWI Refusal Hearings in NY happen after you have been pulled over for a DUI and then refuse to take a breathalyzer test to determine your intoxication levels. If you refuse the breathalyzer, you could be subject to a Refusal Hearing in NY state. While you are NOT required by law to submit to a breathalyzer test if you are pulled over, there could be financial, insurance, and license suspension consequences if you do not. However, if an officer has reason to believe (probable cause), that you are driving while intoxicated, then you consent to taking the chemical test under the ‘implied consent law’

Most of the time, you will not be forced to take the breathalyzer. You have the right to refuse, bearing consequences. However, if you are involved in an accident causing death or injury to yourself or others, a judge can impose a court order for the test. If you cooperate, you also have the right to request further testing by the medical professional of your choosing.


In New York state, a BAC (Blood Alcohol Content) reading of 0.05 or more is legal evidence you are impaired. A BAC of 0.08 or more is legal evidence of intoxication. And a BAC of 0.18 is legal evidence of aggravated driving while intoxicated. The standards and penalties for these offenses are even worse for commercial drivers.

However, chemical evidence like a BAC reading are NOT required to prove intoxication. The testimony of your arresting officer about your appearance and behavior ALONE can convict you.

Report of Refusal

Upon refusal, a “Report of Refusal” will be taken and filed by the arresting officer. Followed by a Refusal Hearing, heard by an Administrative Law Judge. You’ll receive notice for the date of the Refusal Hearing from the DMV within 15 days of the alleged refusal. During this time, your license will be suspended, and this hearing is separate from any criminal hearing(s) you are facing. If there is no Report of Refusal, your license cannot be suspended for refusing.

As this is separate, and not, a criminal hearing, a lower standard of proof is required – hearsay is admissible. If your arresting officer is in court, this is an opportunity for your attorney to cross examine that officer, as they will not be represented by their own attorney. In the absence of the officer, the judge will consider their report. Both the judge and the officer have the option to question you. Your failure to testify can be used against you.

What Do Judges Consider at Refusal Hearings?

  • Was there reasonable suspicion of alcohol or drugs?
  • Was there probable cause to make an arrest
  • Were the process of refusal and the potential consequences explained?
  • Did all of this lead to a final refusal?

If the judge determines the answers to these questions is ‘yes’, your license will be suspended for a minimum of one year.

Consequences of Refusal

If you are found to have refused by a judge, there are severe consequences:

  • 1st refusal: 1 year license suspension & $500 fine
  • 2nd offense (or 1st refusal with previous DUI/DWI within 5 years): 18 month license suspension & $750 fine

If you have received a DUI, DWI, or refused a breathalyzer and are now facing a Refusal Hearing, you will need a lawyer to navigate this complicated process. NY Refusal Hearing Lawyer Michael Block has more than 25 years experience, achieving positive outcomes for his clients. When you are given a New York Refusal Hearing for refusing to submit to a chemical drug and/or alcohol test, please contact our office for a free consultation.

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