Item: Friedman & Ranzenhofer, PC
Rating: 5
Author: Yerko Beccera

Rochester criminal Defense attorney Robert Friedman discusses license revocation for refusing to submit to a chemical breath test.

Good Morning. I am Bob Friedman, Attorney with Friedman & Ranzenhofer, PC.

Welcome to the September 11th, 2020 edition of the Legal Survival Channel: Today’s Legal News You Can Use.

Defendant commenced an Article 78 proceeding challenging a determination of the New York Department of Motor Vehicles (DMV) revoking his driver’s license based on his refusal to submit to a chemical breath test.

New York State Trooper stopped the defendant’s vehicle as he was attempting an illegal U-turn in the center median of the New York State Thruway. The driver smelled of alcohol, his neck and face appeared flushed, and his eyes were red. He admitted that he was coming from a brewery and had consumed “a couple of IPAs.” According to Trooper, defendant showed impairment on several field sobriety tests. Trooper placed defendant under arrest, requested he submit to a preliminary breath test, and informed him that his refusal was punishable by traffic ticket. Defendant refused the preliminary breath test. Trooper continued administering field sobriety tests and asked defendant four separate times to submit to a chemical breath test to determine his blood alcohol content.

With each request, Trooper read the New York State Police Driving or Operating While Intoxicated Warning, advising petitioner that his failure to submit to a chemical test would result in the immediate suspension and subsequent revocation of his license. Defendant refused each time.

Pursuant to Vehicle and Traffic Law § 1194 (2) (a), any person operating a motor vehicle in the State of New York is deemed to have given consent for, as is relevant here, a chemical breath test for the purposes of determining blood alcohol content, provided that the officer has reasonable grounds to believe that the person was operating a motor vehicle under the influence of alcohol. If, after being placed under arrest and being informed of the consequences of refusal, the individual refuses to submit to a chemical breath test, his or her driver’s license shall be revoked, regardless whether the arrest results in a criminal conviction.

The Supreme Court, Albany County held that Trooper’s failure to prepare a chemical refusal report did not divest the DMV of jurisdiction to conduct the refusal hearing and revoke the defendant’s license. The officer’s preparation of the verified, simplified information and supporting deposition charging the defendant with operating a motor vehicle under the influence of alcohol provided the arraignment judge with sufficient grounds to issue a notice of temporary suspension and a notice of hearing, triggering refusal proceedings before DMV. Trooper’s testimony at the refusal hearing, which was subject to cross-examination, provided defendant with adequate opportunity to challenge the grounds for revocation, as required by due process. Thus, the defendant’s Article 78 petition was denied.

For further information on the rights of DWI defendants, see our free NY DWI Guide

Contact Rochester DWI attorneys Friedman & Ranzenhofer, PC at 716.542.5444 if you are arrested for driving while intoxicated