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I submitted to a breathalysers on scene but officer said that I refused. How do I approach this at my hearing?

Medford, NY |

I was pulled over for speeding, submitted to a field sobriety test and a breathalyser.At my arraignment I was suprised when the judge said that I refused the test.

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Attorney answers 7

Posted

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Michael Palumbo
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Michael J Palumbo

Michael J Palumbo

Posted

In NY with all of the upgraded charges, aggravated DWI on a .18, various district attorneys holding persons "as charged" when they blow a certain level, the felony rip on a 2nd DWI in 10 years or if there are children in the car, the potential for 3 year DWI probation if convicted of an aggravated DWI, and the interlock for first time misdemeanor convictions, I tell anyone who asks me to never blow. It makes no sense because unless you blow they can never get you for an aggravated charge and no district attorney's policy can kick in as to holding you "as charged" on their number. So you don't blow and IF you lose your license at the refusal hearing you can still get a conditional when you sign up for the DDP.

Posted

The test on the side of the road is not the breathalyzer the judge is speaking of. At the police station, were you asked again to take a breath or blood test and did you consent?

I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.

Asker

Posted

I was never again asked to submit to anything.

Joseph A Lo Piccolo

Joseph A Lo Piccolo

Posted

Unfortunately, the cop is saying otherwise. Hire a lawyer to get to the bottom of this. It can be dealt with, especially at the refusal hearing which should be in the 1st 10 days after your arraignment.

Michael J Palumbo

Michael J Palumbo

Posted

In NY with all of the upgraded charges, aggravated DWI on a .18, various district attorneys holding persons "as charged" when they blow a certain level, the felony rip on a 2nd DWI in 10 years or if there are children in the car, the potential for 3 year DWI probation if convicted of an aggravated DWI, and the interlock for first time misdemeanor convictions, I tell anyone who asks me to never blow. It makes no sense because unless you blow they can never get you for an aggravated charge and no district attorney's policy can kick in as to holding you "as charged" on their number. So you don't blow and IF you lose your license at the refusal hearing you can still get a conditional when you sign up for the DDP.

Asker

Posted

Thanks. That answer made the most sense to me.

Joseph A Lo Piccolo

Joseph A Lo Piccolo

Posted

Good Luck!

Posted

You need a lawyer to get a hold of the video of your refusal. [there should have been an additional request to blow at a police station] Most if not all jurisdictions videotape this process. Your hearing can be postponed if necessary. Obviously you want to have as much evidence as you can to back up your version of events so that it is not simply your word against the cop's word. You should hire an attorney to help you fight this as it will be a minimum of one year license revocation if you lose the hearing.

Richard Southard
212-385-8600
I am a former Deputy Bureau Chief with the Kings County DA’s Office and adjunct professor at John Jay College of Criminal Justice, with over 15 years experience specializing in criminal law cases. I offer free in-person, phone and video consultations.

All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. However, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.reasonabledoubtny.com

Michael J Palumbo

Michael J Palumbo

Posted

In NY with all of the upgraded charges, aggravated DWI on a .18, various district attorneys holding persons "as charged" when they blow a certain level, the felony rip on a 2nd DWI in 10 years or if there are children in the car, the potential for 3 year DWI probation if convicted of an aggravated DWI, and the interlock for first time misdemeanor convictions, I tell anyone who asks me to never blow. It makes no sense because unless you blow they can never get you for an aggravated charge and no district attorney's policy can kick in as to holding you "as charged" on their number. So you don't blow and IF you lose your license at the refusal hearing you can still get a conditional when you sign up for the DDP.

Posted

The question is whether it was the portable breath test that they administer on the side of the road that courts have deemed to be inadmissible as evidence or you refused to take the breath test at the station house. Regardless, I normally advise my clients to refuse testing if they think that they are intoxicated as well as roadside maneuvers. It makes it extremely difficult for a prosecutor to prove your guilt. The only evidence they would have would be that you were speeding. Speeding is not evidence of your level of intoxication.

Michael J Palumbo

Michael J Palumbo

Posted

In NY with all of the upgraded charges, aggravated DWI on a .18, various district attorneys holding persons "as charged" when they blow a certain level, the felony rip on a 2nd DWI in 10 years or if there are children in the car, the potential for 3 year DWI probation if convicted of an aggravated DWI, and the interlock for first time misdemeanor convictions, I tell anyone who asks me to never blow. It makes no sense because unless you blow they can never get you for an aggravated charge and no district attorney's policy can kick in as to holding you "as charged" on their number. So you don't blow and IF you lose your license at the refusal hearing you can still get a conditional when you sign up for the DDP.

Posted

The on-scene breathalyzer is a preliminary test. It is not the evidentiary test in most jurisdictions. If you were taken to the police station or jail and declined the second test thinking you had already given a breath sample, you may have been misinformed.

This answer is my personal opinion, offered for informational purposes only. It is not a legal opinion, nor is it legal advice, nor does it create an attorney-client relationship with anyone reading it.

Michael J Palumbo

Michael J Palumbo

Posted

In NY with all of the upgraded charges, aggravated DWI on a .18, various district attorneys holding persons "as charged" when they blow a certain level, the felony rip on a 2nd DWI in 10 years or if there are children in the car, the potential for 3 year DWI probation if convicted of an aggravated DWI, and the interlock for first time misdemeanor convictions, I tell anyone who asks me to never blow. It makes no sense because unless you blow they can never get you for an aggravated charge and no district attorney's policy can kick in as to holding you "as charged" on their number. So you don't blow and IF you lose your license at the refusal hearing you can still get a conditional when you sign up for the DDP.

Posted

The refusal doesnt apply to the PBT (portable breath test) at the scene. It applies to the testing done back at the police station or testing section. Did you refuse there?

Christopher Daniel Leroi

Christopher Daniel Leroi

Posted

Absolutely correct

Michael J Palumbo

Michael J Palumbo

Posted

In NY with all of the upgraded charges, aggravated DWI on a .18, various district attorneys holding persons "as charged" when they blow a certain level, the felony rip on a 2nd DWI in 10 years or if there are children in the car, the potential for 3 year DWI probation if convicted of an aggravated DWI, and the interlock for first time misdemeanor convictions, I tell anyone who asks me to never blow. It makes no sense because unless you blow they can never get you for an aggravated charge and no district attorney's policy can kick in as to holding you "as charged" on their number. So you don't blow and IF you lose your license at the refusal hearing you can still get a conditional when you sign up for the DDP.

Posted

The field sobriety test is not the test that is the basis of your "refusal" or "lack of refusal"...the officer's theory (whether it occurred or not is something only you and he know) is that after arrest, at the precinct (or a hospital if you were taken there) you were asked to consent to either a breath or blood test and you refused to do so.

It is important that you hire an attorney immediately for this process. I saw a colleague suggest that you should obtain a videotape. I notice you are posting from Medford, if you received teh DWI in Suffolk, there likely is no videotape of what occurred at the precinct (the refusal), although there could possibly be a videotape from the scene of your arrest. Unless you (or better, an attorney) knows that adjourning your refusal hearing will help uncover evidence so that you may win the hearing, it is not in your interest to adjourn it...should you do so, there will be a suspension in effect during the adjournment (2-4 months) that will not count towards your 1 year revocation should you lose the hearing.

It is important that you talk to an attorney immediately. Feel free to call this office.

Michael J Palumbo

Michael J Palumbo

Posted

In NY with all of the upgraded charges, aggravated DWI on a .18, various district attorneys holding persons "as charged" when they blow a certain level, the felony rip on a 2nd DWI in 10 years or if there are children in the car, the potential for 3 year DWI probation if convicted of an aggravated DWI, and the interlock for first time misdemeanor convictions, I tell anyone who asks me to never blow. It makes no sense because unless you blow they can never get you for an aggravated charge and no district attorney's policy can kick in as to holding you "as charged" on their number. So you don't blow and IF you lose your license at the refusal hearing you can still get a conditional when you sign up for the DDP.

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