A Rochester driver who is stopped for drinking and driving and refuses to take a breath test faces serious penalties.

To discourage suspected drunk drivers from refusing to take the breath test, New York State imposes additional driver’s license penalties and fines on individuals who refuse the test.

These additional penalties may apply even if the driver is acquitted of any drinking and driving charges.

Whether to impose the penalties for refusing the breath test is not determined by the court.

Instead, the matter will be referred to the Department of Motor Vehicles, which will schedule a “Refusal Hearing” before an administrative law judge.

It is permissible for a defendant not to appear at the Refusal Hearing.

Failing to appear, however, means that the defendant has waived his or her right to the hearing – which has the same result as having the administrative law judge rule against the defendant.

As a result, the administrative law judge will note that the defendant has waived the hearing and impose the driver’s license penalties and fines mandated for refusing the breath test.

Because it can be very difficult for a defendant to succeed at a Refusal Hearing, there are circumstances where an experienced DWI lawyer will determine that his or her client is better off waiving the hearing.

For example, in a case where there is strong evidence against the defendant, a realistic goal may be to have the driver’s license penalty for refusing the breath test and the driver’s license penalty imposed by the criminal court for any drinking and driving conviction overlap as much as possible.

A DWI defendant who refuses the breath test faces serious driver’s license penalties. If you need legal help, call us at 585-484-7432.