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| Starbucks Oatmeal - Newman & Cyr, The DWI Attorneys |
A New York DWI REFUSAL
is a Verb!
I recently got into a little discussion with my daughter over her Starbucks oatmeal. You see, she, as many young adults, doesn't read everything as intensely as I do. You can just imagine having me for a father.
Anyway, I get her the oatmeal, and she starts eating it right away, and I just sit there dumbfounded. She's like "what now?"
I say the top of the oatmeal (the label) says it has to STEEP for three minutes to allow the oatmeal to fully form (cook and absorb). I tell her steep is a verb. You let that oatmeal steep, and then you eat it.
So what does Starbucks Oatmeal, and New York DWI refusals have in common? The word refusal in New York is also a verb. It's a noun as well - but within the context of whether you truly refused to take a chemical test of your breath-it is most definitely a VERB.
New York State has Two Types of DWI Breath Tests
The breath test you take at roadside is called the preliminary breath test. It is not admissible to prove your blood alcohol content. It is not admissible to prove your DWI at a trial. It is admissible to prove PC (probable cause) for a DWI arrest.
If you refuse the PBT you can be fined, you can have your license suspended, but it is not the big refusal that can land you a one year driver's license revocation and be used in the criminal case against you to show consciousness of your guilt.
The second type of breath test is called the chemical test. That test is the "big" breath test back at the police station or trooper barracks. There you have blow into their machine to give a BAC result. This blood alcohol content number can be used against you to prove a DWI in court.
New York State has Two Types of DWI Refusals (to take a chemical test)
One refusal is the express type. Here you just say "no" or "no way" or "I'm not taking it" (and there are many more colorful examples). Very clear and understandable - you just plain refuse to do it or to take it.
The other type of refusal is less clear and more uncertain. It is called the refusal by conduct. Here is where the refusal must be a "persistent" refusal- not merely apply to a failure to take or to complete a breath test.
This refusal by conduct must be Intentional because it would not be fair to hold an unintentional refusal against someone. That certainly does not show or demonstrate a guilty conscious.
Most cases of this refusal by conduct show deliberate actions (or lack thereof) to provide a sample. As they say, there are the sins of commission and omission.
Fake or Pretend Blowing Into the Machine is a DWI Refusal
People fake blow into the machine or divert their breath. Pretending to blow into the machine is one way of proving a refusal. Deliberately diverting your breath is also a refusal.
Disobeying the Police is a DWI Refusal
Another way is by disobeying the police. The police give lots of instructions. If the police specifically tell you do not place anything in your mouth and you do, that's a refusal. They tell you don't chew gum and then you chew gum, that's a refusal. Disregarding clear instructions is a big no no.
They cannot base your refusal merely on the machine not registering a breath sample. Sometimes machines malfunction or people don't blow hard and long enough for the sample to register properly.
Questions to Ask to Determine if It was a True DWI Refusal
So the first question is:
Was there Compliance with Police Directions and Instructions?
The second, was that compliance sincere?
You Must Demand Your Right to Have a DWI Refusal Hearing in Criminal Court
You are given your right to have a DMV DWI refusal hearing for your driver's license privileges. This is automatically scheduled by the criminal court and must occur within fifteen days of your arraignment. This is to determine whether there was a legal refusal to take a chemical test of your blood or breath. The purpose of that hearing is focused on licensure.
The Second Hearing for a DWI Refusal is in Criminal Court
But there is another place you can demand a DWI refusal hearing. Your attorney can demand a criminal court hearing (or as part of a suppression hearing) to determine whether yours is a true (real ) refusal or one that was inappropriately labeled as one by the police.
The purpose of this is to determine whether the prosecution can use your refusal against you in the criminal case. If you are successful then the refusal cannot be held against you, and used to show that you had a consciousness of guilt. They cannot say that the reason you failed to give a proper sample was because you knew you were guilty of DWI. The judge will not give the jury an instruction that evidence of your refusal infers your GUILT.
Refusals are more complicated than people might imagine but often challenging specific evidence against you is the key to a successful DWI defense.
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BY Larry Newman, D.C., Esq.
If you or a loved one are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes -including the potential loss of your freedom.
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If you have questions about a DWI case or a DWI Refusal case in New York, call us: 607-229-5184
or find us online: www.ithacadwi.com
www.watkinsglendwi.com
www.facebook.com/ithacadwi
www.twitter.com/ithacadwi
BY Larry Newman, D.C., Esq.
NEWMAN & CYR
Educational Purposes only. Copyright 2016.
If you or a loved one are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes -including the potential loss of your freedom.
*Attorney advertising
