When a Rochester driver is stopped for DWI and refuses to take the breath test, a hearing will be held before an Administrative Law Judge (ALJ) appointed by the Department of Motor Vehicles to determine whether that driver’s license should be revoked.

For a first time offender, a finding by the ALJ that a driver refused to take a breath test when law enforcement had valid grounds for stopping the driver and asking him or her to submit to the breath test results in a driver’s license revocation of at least one year and a $500 fine.

These penalties are in addition to those imposed by the criminal court for any underlying drinking and driving charges.

When a driver believes the ruling of the ALJ was incorrect and he or she did not refuse a legal request to take the breath test, the ALJ’s ruling may be appealed to the DMV Administrative Appeals Bureau.

Any appeal of the ALJ’s revocation must be filed within 60 days after written notice of the ALJ’s ruling is provided to the driver by the DMV.

There is a $10 filing fee that must accompany the appeal. As part of the appeal form, the driver or his or her lawyer must submit a written argument setting forth why they believe the ALJ was incorrect.

When appealing the DMV’s ruling, there are no court appearances or oral arguments.

Instead, the Appeals Board reviews the official record of the original hearing – which primarily consists of the documents provided to the ALJ regarding the arrest and alleged refusal – and will base its ruling on this official record.

If the driver wants the Appeals Board to review the transcript of the original hearing in addition to the documentation submitted, he or she must pay for it and provide it to the Appeals Board.

It is rare for the Appeals Board to reverse the decision of the ALJ.

As a result, it is helpful to have the advice of an experienced DWI lawyer when deciding whether an appeal is worthwhile.

If you have been arrested for DWI, we can help you understand all of the potential penalties. Call us at 585-484-7432.