Written by attorney Todd W. Carpenter

You Refused a Chemical Test in New York State…Now What?


After you were arrested and taken to the police station, you were probably asked to provide a sample of your breath, blood or urine to determine your alcohol content, or “BAC". Usually you’re asked to blow into a machine located at the police station. If you said “no," said nothing at all, or even just couldn’t blow into the machine hard enough, then you will probably hear your case referred to as a “refusal," as in, you refused to submit to a chemical test. (Note: the officers’ request to blow into the machine at the station is completely different – and a lot more important - than the request to blow into the little box on the side of the road after you were stopped but before you were arrested.)


This is one of those “crystal ball" type questions that can’t be answered with any degree of certainty at this early stage in the game. And I certainly can’t answer the age-old and always popular “should I have refused?" THAT question is too loaded and too case specific to answer in a general informational letter like this one, and a topic for another day.

What I can do here, though, is try to explain the refusal process a little bit, and hope it sheds some light on what can be a very confusing process.


The arresting agency (local or state police, county sheriff, etc…) will treat your case as a refusal if they claim that, through your words or conduct, you persistently refused to provide a breath, blood or urine sample for a chemical test to determine your BAC. Once this allegation has been made, your case will take a slightly different path than if you had provided the sample.

Keep in mind that this does not mean that you did the wrong thing, or the right thing for that matter! There are pluses and minuses to any decision you make during an arrest, and submitting to the chemical test or not is just another one of those decisions, i.e., it’s helpful because, by refusing, you’ve denied the prosecution a critical piece of evidence – your BAC; it’s potentially harmful, however, because you now risk having your New York State driving privileges revoked for one year. And that is where a refusal case differs from a typical DWI case.

As a refusal, you will be subject to a NYS DMV refusal hearing in addition to (but at a different location/time than) the criminal proceedings. The purpose of this hearing is to determine whether you did, in fact, refuse to submit to a chemical test. The hearing is an administrative/civil proceeding, not a criminal proceeding. Because of that, it is easiest to remember that the refusal hearing is a completely separate proceeding from the criminal charges (the DWI). That’s because you can be successful in either the criminal or refusal case, but if you “lose" the other you still have to suffer the consequences.

Having said that, however, there are very few instances where the result of the refusal hearing may affect the resolution of the criminal case. Your attorney should explain those circumstances to you as/if the need arises. Conversely, there is also one (and really only one) instance where the criminal matter (if resolved prior to the refusal hearing) will, ever so slightly, impact the conduct of the refusal hearing.


It is important for all clients facing a refusal hearing to understand that the hearing itself is different from a criminal trial in many significant ways. First and foremost, the “proof beyond a reasonable doubt standard" does not apply to a refusal hearing. Instead, the degree of proof is mere “clear and convincing." This is a substantially lower standard, and unfortunately tends to cut against you, the driver.

Secondly, the subject matter of a refusal hearing is very limited, and you or your attorney are not permitted to get into a large portion of what you may feel is important to the defense of your case. Trust that your attorney fully understands that every detail of your case is of paramount importance to you. But a refusal hearing is not the time to delve into those facts.

And finally, the hearing is not presided over by a “judge" in the traditional sense – a person in a flowing black robe swinging a wooden gavel. It is overseen instead by an Administrative Law Judge (“ALJ"), essentially an employee of the DMV. Although they do not wear a robe or carry a threatening hammer, you must pay an appropriate degree of respect to the ALJ.

During the course of the hearing, the arresting officer will testify to the relevant facts, and you will then have an opportunity to cross-examine that officer. You may or may not be required to testify at the hearing; that is a determination to be made by you (if unrepresented) or your attorney. Remember, the standard of proof on the officer is very low, and in the end it comes down to a “your word versus the officer’s" situation. Common sense dictates that in the typical hearing, the officer’s credibility will almost always prevail. For that reason, there is no need to ask you testify and risk misspeaking or misunderstanding a question and possibly jeopardizing your case, since your testimony at the refusal hearing can be used against you in the criminal proceeding if the criminal matter is still pending.


In the event the ALJ determines that the arresting officer met his burden of proof and concludes that you did refuse to submit to a chemical test, your NYS driver’s license or driving privileges will be revoked for one year from the date of the hearing. Unfortunately, any time prior to the hearing that you were subject to a license suspension will not count toward that one year. The clock starts on the day of the hearing.

Another very significant consequence of losing a refusal hearing, other than the loss of full driving privileges, is that now the District Attorney’s Office essentially has you over a barrel. If you lose the refusal hearing, the only, and I mean only way for you to regain any driving privileges during that one year revocation period is to either plead to or be convicted after trial of an alcohol-related driving offense (e.g., DWAI or DWI; please note that you arenot eligible for a condition license if convicted of DWAI-Drugs). Without that conviction (e.g., you plead to a non-alcohol related offense or obtain a “not guilty" verdict after trial), you will not be eligible for a conditional license and will have to ride out the entire year with no driving privileges.

While I have tried to be as thorough as possible, this is only an abbreviated synopsis of the refusal process and potential consequences. Your best option is to discuss your case with an experienced and knowledgeable criminal defense/DWI attorney. There have been instances where the self-represented driver/defendant has successfully defended him or herself against a charge of refusal. However, that is not recommended, and as discussed briefly above, success at the refusal hearing may still come at a great cost with regard to the criminal matter.

Please feel free to contact me at the Law Office of Jonna M. Spilbor ( or [email protected]) to discuss your New York State DWI/refusal case at your earliest convenience. We are also available by phone 24 hours a day at (845) 485-2529, and look forward to the opportunity to assist you.

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