I went to my dmv refusal hearing and the ny state trooper did not show up so they continued the case without a set date for another hearing. My court appointed lawyer said I just have to wait until they set up another date and it could be months. He also said I couldn't fight the refusal either. I did not refuse a breathalizer. I tried taking one but I was having trouble breathing due to a anxiety attack so I offered to give a blood test THEN the trooper gave me a refusal.
Well, you can't get it dismissed for him not showing up. You get your license back and wait for a 2nd date.
If he doesn't show for the 2nd hrg date and there are no reports, the DMV judge will dismiss the refusal for DMV purposes. It has no affect on the criminal case.
If you want to argue in the criminal case about your offer of a blood test, it is certainly evidence to rebut the negative inference a jury MAY draw from the alleged refusal.
Joseph A. Lo Piccolo, Esq.
President, Criminal Courts Bar Association 11'-12'
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)
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.
Your driving privileges should be reinstated pending the next court date. Your attorney has the right to subpoena the officer to appear. Getting the chance to cross-examine the officer at the hearing is a free shot for your lawyer. If the officer does not show, the administrative law judge will introduce the Report of Refusal into evidence and accept the information contained in the report without your lawyer cross examining the officer. You of course may testify to contradict anything in the report.
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
Your court appointed lawyer is a moron if he told you that you cannot fight the refusal hearing - you can fight the refusal hearing - as a matter of fact you have to otherwise you will lose your license for 1 year. I have represented many persons at refusal hearings and only a few times has my client lost. But you have a free lawyer and as the saying goes good lawyers aren't cheap and cheap lawyers aren't good.
Michael J. Palumbo
Web Site: http://www.AttackThatTicket.com
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