I guess my question is can a paralegal represent me at a DMV refusal hearing? Or do I have to have a lawyer admitted to the bar?
I'm not sure by what authority a paralegal can practice law ie ask questions under oath of witnesses make legal arguments etc.
In most jurisdictions that could constitute a felony of practicing law without a license.
I'm not sure if NY has an exception for Admin
A paralegal cannot represent you at a proceeding. Only an attorney can do that. I suggest you find an attorney to handle this hearing as it is an extremely important component of your case. What happens at that hearing can have a tremendous impact on the final disposition of your case.
Even if they "could" why "would" you want a paralegal to represent you?
The New York DWI Chemical Test Refusal Case is unique for a number of reasons:
1. The police and prosecution do not have a breath test (NO BAC) to prove their case of Intoxicated driving. It is now purely a matter of degree? Impairment vs. Intoxication are pure opinions?
2. They can not charge VTL 1192 (2) BAC .08 or > or VTL 1192 (2) (a) Aggravated DWI BAC .18 or >. although with new case law (2012) they can try to charge using the roadside field breath test, Intoximeter. NOTE: But probably (highly unlikely) they can not lay proper foundation to admit the BAC result at a trial for "per se" (machine) DWI.
3. The prosecutor can only charge VTL 1192 (3), "Common Law" DWI.
4. The prosecutor usually only has one main witness, the arresting officer. i.e.. the STOP COP.
5. The prosecutor must prove that "you were mentally and physically incapable ( to a substantial extent) of operating an automobile as a reasonably prudent driver." This "Standard" comes from the seminal case, People v. Cruz, NYS.
6. They must prove this legal burden of "intoxication" beyond a reasonable doubt based upon the police officer's observations, and field testing, if any.
7. They can not use the Preliminary Breath Test results (at roadside) to prove their case.
The next STEP at the Refusal Hearing is KEY:
8. The DWI defense lawyer can cross examine the police officer at the DMV administrative hearing without the presence of the prosecutor. This is a golden opportunity to view the case, and maybe score some huge points with the prosecution's main (and usually only) witness. I bring a court reporter to this hearing just for this specific purpose. The cop doesn't stand a chance on doing most of the field testing correctly, especially and most importantly the HGN (horizontal gaze nystagmus).
9. This "cross examination" can cover the stop, the arrest, and the field testing. Most DMV judges will only allow this to a limited degree but still it is an opportunity.
You not only want a lawyer, but a lawyer who knows NYS DWI law, knows how to cross examine cops, and who is Field Sobriety test certified. Anything less is amateur hour.
Unlike the other attorneys, I am not so sure that a non-attorney cannot represent you, as it is a civil proceeding before an administrative agency. Non-attorneys can incorporate companies before the secretary of state, can make liquor license applications before the ABC, and represent persons before all the agencies of the state. So I do not know. That said, it may be a DMV regulation that the person be an attorney. However, what is more troubling is that they are offering their services for "free." Maybe he or she is inexperienced. Do you really want to be the test puppy, or do you want to win the hearing?
First and most importantly you should attend the DMV hearing. If the Police officer does not appear the JHO should lift the suspension of your drivers license and restore your driving privileges until the hearing is rescheduled. You should get a lawyer to represent you as this is a "free shot" at the cop to lock him into his testimony now should your case go to trial down the line you would be amazed at how their testimony can change after they have interacted with a prosecutor before they testify in court. Many attorneys advise that since you in all likelihood you are goinf to "lose" at the hearing that it is not worth going, this is a critical error in judgment
No, you must have an attorney licensed to practice law represent you at the hearing. Further, in addition to fighting the refusal (which can result in a one year revocation of your driver's license) you can obtain valuable information at a DMV hearing for your criminal case at the DMV hearing so you must have an attorney who is experienced handling this matter for you.
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