Effects of Refusal to take a Chemical Test

Under New York State Law it is presumed that motorist will consent to take a chemical test for the presence of alcohol or drugs, after having been arrested for Driving While Intoxicated (DWI) (1192-3) and being requested to take the test after being warned of the effect of a refusal.

The arresting officer must warn the motorist who has been arrested that if they refuse to submit to a chemical test, their license, or New York State privileges for out of state motorists, is subject to immediate suspension upon arraignment and a subsequent hearing (within 15 days) before a Department of Motor Vehicles administrative law judge to determine if his license should be revoked for a period of one year regardless of the outcome of the DWI prosecution.

This means that a motorist can be found not guilty of the DWI charge and still have their license revoked merely for the refusal. The actual language of the warning is not included in this outline since it is not the intent to be an exhaustive review of the law but only a general outline for information purposes. There is an administrative fee for the refusal which would be collected by the DMV.

In practice, upon refusal, the motorist is often immediately taken before a mgaistrate who will take the license and schedule a hearing. Bail is frequently set, especially if the motorist does not have another driver present whos sobriety is not in question. COmmitment to jail is possible if the police deparment does not have temporary holding facilities.

Prompt Suspension: When a motorist is arraigned on a DWI (1192-2 or 2a) and the BAC indicated in the accusatory papers indicate a BAC of .08 or higher, the magistrate is required to immediately suspend his license pending prosecution. The motorist is entitled to a hearing to establish if certain criteria has bene satisfied. If the motorist requests an adjournment, the court will adjourn the matter for no more than 48 hours, after which a heairng will be conducted. If the court is satisfied that the statutory requirements have been met, the motorist's license will be immediately suspended pending the disposition of the matter. Under certain circumstances the motorist may qualify for a "hardship license" which gives the motorist very limited driving privileges.