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

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.

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Attorney answers 4


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 substitution for a meeting whereas all potential legal issues can be discussed.


No you cannot.


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 named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.


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.

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