Can a decision in a decision at a breathalizer refusal hearing be used in my favor in the criminal case for DUI?

Asked about 1 year ago - Bronx, NY

I was arrested following a motor vehicle accident. I was offered a blood test which I refused. At the refusal hearing the judge found that the officer did not have sufficient reason to request the test. Can I now use that decision in my upcoming criminal hearing. I was offered probation but not sure what to do now.

Attorney answers (4)

  1. Joseph A Lo Piccolo

    Contributor Level 20


    Lawyers agree

    Answered . Unfortunately, the decision is not binding. However, the facts determined at the DMV hearing may be helpful at the criminal court hearing/trial. Be sure to order the transcript!

    I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a... more
  2. Eric Edward Rothstein

    Contributor Level 20


    Lawyers agree

    Answered . The police are not usually represented by counsel at these hearings so no. However, you should order the transcript in case the police give inconsistent testimony.

    I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was... more
  3. Michael J Palumbo


    Contributor Level 19


    Lawyers agree

    Answered . No you cannot.

  4. Zachary Peter Reibstein


    Contributor Level 10


    Lawyers agree

    Answered . The DMV hearing and the criminal case are two separate entities, with one technically having no impact on the other. However, the testimony given by the officer at the DMV hearing before he had a chance to get prepared by the DA could prove useful down the line. Make sure you or your lawyer orders the transcript and reads it before any hearings in the criminal case, it might provide good material for cross examination. A good showing at the criminal hearing could lead the DA to give you a better deal.

    For more information visit Please note that unless a formal letter of engagement or retainer... more

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