What the consequences for refusal to blow in a DUI case?

Asked on October 20, 2015 under Criminal Law, New York


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

In NY a motorist is deemed to give their consent to a breath test. Accordingly, the DMV has the authority to either suspend or revoke a person&rsquos license for their refusal to submit this test.
In such a case, the DMV holds a "refusal hearing" within 14 days of the arraignment in order to to determine your blood alcohol content a/k/a &ldquoBAC.&rdquo However, for the State to establish that you &ldquorefused,&rdquo the arresting officer must establish 4 elements

That the officer had reasonable cause to believe that you had been driving under the influence,
That the officer made a lawful arrest,
That you were given sufficient warning that refusal to submit to the test would result in the immediate suspension and subsequent revocation of your license, and 
That you indeed refused to submit to the test.

If the court finds that you refused, you will receive a 1 year license revocation. However, if it decides in your favor, your privilege to drive will be restored the same day.
That having been said, the DUI charge must still be dealt with. At this point, you should consult directly with an attorney in the area of where this incident occurred. They can best advise as to your rights.

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