Ithaca Elmira DWI lawyer: ADVANTAGES of DMV Refusal Hearing for DWI in NY(Part 2)

NOPE = REFUSAL  :-)

ADVANTAGES of the New York DMV Refusal Hearing for a DWI Refusal Case (Part 2):  Cross-Examining the Main Police Witness (before the criminal case starts!)

OK, welcome back!  This is part two of my series on the Advantages of the New York DMV Refusal Hearing for a DWI Refusal case.   In PART ONE, I gave an overview of the process and where these hearings are held throughout New York state.  However, in this section, I will explain and highlight the Cross-Examination of the principal police witnesses for the prosecution during the DMV administrative refusal hearing... and why it is a huge advantage for the defense of the main criminal DWI case. 

WHICH OFFICER(S) SHOW UP AT THE ADMINISTRATIVE REFUSAL HEARING? 

Obviously, who shows up varies from refusal case to refusal case.  Sometimes one officer comes to the administrative DMV hearing.  Sometimes two officers show up.  Sometimes nobody shows up (but we will cover that later).  You'll see in a minute why we want them to show up...

Usually the officers who were involved in the stop of the car and/or the primary officer involved in the arrest are the ones who come to the DMV refusal hearing in NY.  That's a good thing --and I will go on to explain why.  

WHAT SORT OF STUFF WILL THE POLICE OFFICER TESTIFY TO AT THE NY DMV REFUSAL HEARING?

In order for the Administrative Law Judge to determine if there is a legal refusal of the chemical test, the police have to establish some basic stuff through their testimony: 

1-that they had probable cause to suspect you were drunk driving

2-that they had probable cause to arrest you for drunk driving

3-that they gave you sufficient warnings that you would lose your driving privileges if you refused to take the chemical test back at the station/hospital.  

4-that you legally refused (either express or implied refusal)

So those 4 things are the crux of what they need to talk about... but they usually go into more detail based on their report (which they usually have with them).  In my experience, most officers will talk about why they stopped the car, talk about how they smelled alcohol on the driver, how the driver had slurred speech/watery eyes, and then they will talk about whatever Field Sobriety Tests they gave the driver.  

Once they finish how the stop and arrest happened, they will go into what happened back at the police station.  They usually will testify that they read the standardized MIRANDA warnings and the standard DWI Refusal Warning off a little card that they keep in their pocket--this is the text of the DWI Refusal Warning (forgive the length --its not my fault):

1. You are under arrest for Driving While Intoxicated

2. A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege, whether or not you are convicted of the charge for which you were arrested.

3. If you refuse to submit to a chemical test, or any portion thereof your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest. 

4. Will you submit to a chemical test of your (breath/blood/urine) for alcohol?  ( or will you submit to a chemical analysis of your blood/urine for drugs?)   

Generally, in my experience, if the officer reads from the card at least once, then the hearing Judge will find that the warning was sufficient.  Most officers read it several times over a period of time. 

Finally, the officer testifies about your refusal of the test.  They will say what you said if it was an express refusal (like the driver said "No") or what you did if it was an implied refusal (i.e. we asked three times and each time the driver remained silent, etc).  They also have to bring a piece of paper called the "Report of Refusal."  This typically has the times the warning was read to the driver and what they said. 

WHAT THINGS DO WE CROSS-EXAMINE AT THE DMV REFUSAL HEARING IN NY?

It is a significant advantage for our defense of your CRIMINAL CASE to cross-examine the main police witness at the DMV Refusal hearing in New York.   How come?  

We get to see several important things before the criminal case really gets going.  For starters, we get to evaluate how competent a witness the arresting officer is going to be in a trial situation.  "Know thy adversary."  The more time and more questions we can ask them at the administrative DMV hearing, the better we can learn their strengths and weaknesses.  Some officers are terrific witnesses -- they're confident, speak clearly, and know their stuff.  Others are less so.  It is critical for us to get a sense of how they will perform if we have to push the case toward a suppression hearing or trial on the criminal DWI charges.  It's like the old NBC slogan, "the more you know..."

Remember, at the DMV refusal hearing the Officer is placed under oath so s/he must tell the truth or perjure himself/herself.  That's why it is important to get their testimony on the record being created by the Judge so we can make sure they don't change it during the criminal case.  We can get the audio recording of the hearing after it's done if necessary.

Specifically, we always cross-examine the officer on the stop of the car.  Even though a police officer can (pretty much )stop anybody legally in a car in NY,  we focus on the reason for the stop.  If your driving was pretty good and you got stopped for a light being out or a loud muffler etc, then we want to have him admit that your driving was otherwise fine.  

We will ask questions about how you answered their questions right after being pulled over.  In New York, the prosecutor must prove beyond a reasonable doubt that the driver did not have the MENTAL and PHYSICAL capability to reasonably operate a motor vehicle.  Therefore, if we can get the officer to admit during the DMV hearing that you were "coherent" then we can use that in defending the criminal case.  

We ask questions about the standardized field sobriety tests they gave the driver--more on this in a future blog post in this series. 

Finally, we ask about any specific issues as part of the case.  I just had a case where my client got into a car accident and smacked her head during the crash.  It came out a couple days later that she had a concussion --however, the police still forced her to do Field Sobriety Tests.  I got the officer to admit that somebody with a concussion would be unable to reasonably do the tests and those tests would be unreliable.  That's one example of how we have to tailor every cross-examination to the best interest of the client and focus on important specific issues. 

Here's a basic list of topics we typically cross-examine at the DMV refusal hearing:

1.  Probable Cause to Stop Car

2.  How driver responded to basic questions (like license/registration request)

3.  Was driver "coherent" ? 

4.  Did driver walk under own power?  no stumbles/falls/trips etc

5.  Cross on Field Sobriety Testing (see future post)

6.  Cross on Refusal Warnings Given by Officer

7.  Cross on Miranda Warnings (if necessary)

8.  Cross on Refusal itself (express vs implied)

9.  Cross any specific issue to case that's important (i.e. injuries/disability etc)

Obviously, this is a very basic overview so that you (the reader) can get a sense of WHY the New York DMV administrative hearing is so important to the defense of a DWI refusal criminal case in this state.  

Although this hearing is technically only about whether the DMV should suspend the driving privileges of the suspected drunk driver, you can see it is about so much more...by getting a chance to cross the officer early in the criminal process, we can lock them into testimony later in the criminal case, and we can take away the officer's credibility if they testify differently later in the case... it's an advantage for our client. 

In my next post, I will give specific information about why it is advantageous to cross-examine the officer on the Standardized Field Sobriety Tests and how it can help the criminal DWI case in NY.  

Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.

If you have questions about a marijuana charge, DWI, felony charge, misdemeanor charge or another violation in Ithaca, Watkins Glen, Steuben County or the surrounding counties of Upstate New York , give us a call, shoot us an email, or fill out the form on our website:

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