As an experienced Rockland County Criminal Defense Attorney, I have seen a lot of strange occurances though the years. This blog post will reveal one that has occurred in my practice, and is bound to occur again. Believe it or not, there are instances in New York where a person charged with DWI does not want his or her DWI to be dismissed. To understand why, one must understand what happens at a separate proceeding that occurs whenever someone is accused of refusing a breath test.
DWI Test Refusals
As you may already know, when suspected of DWI, a person may be asked to submit to a breath test at the police station subsequent to a DWI arrest. The police do not have the authority to force someone to take the test – they can only ask. However, if someone declines, than upon the filing of certain paperwork by the police, the New York State Department of Motor Vehicles (DMV) will conduct a hearing to confirm that the refusal occurred and that it comported with applicable law. This hearing is commonly referred to as a Refusal Hearing.
A Refusal Hearing is not a criminal proceeding, and has no direct connection to any criminal prosecution. It will run its course separate and apart from the criminal case in criminal court. Being non-criminal in nature, its procedure and rules are very different. Proof Beyond a Reasonable Doubt is not the applicable standard. There are no criminal court judges (only administrative law judges), no prosecutors, and no juries. The rules of evidence are very lax. And the only issue to be decided is whether or not the individual refused to take the breath test. Punishment is also limited. Administrative fines and license revocations are the only permitted sanctions. It is the license revocation that is most important for purposes of this blog entry.
The Refusal Hearing usually, but not always, is resolved prior to the criminal case. As one may suspect, it is difficult to win these hearings. A loss means an automatic one-year license revocation. A Conditional, or Hardship, license is unavailable for this type of revocation. Thus, when someone loses the Refusal Hearing, they are off the road for a full year. This is untenable for many people.
However, there is a scenario where such a person can get a Conditional License. One can be obtained through the criminal case so long as the individual is eligible for such (lacks certain types of prior offenses) and, this is the key, is convicted of any VTL §1192 offense (these are the entire family of DWI offenses in New York).
Thus, when someone needs a Conditional License to get to work because they lost their license for a year at the Refusal Hearing, they must make sure that they are convicted of some VTL §1192 offense in the criminal case. If the District Attorney offers to dismiss the case, than a Conditional License cannot be obtained. No VTL §1192 conviction = No Conditional License. When this occurs, the client needs to make a decision. Do I want a dismissal or a Conditional License? They cannot get both. Unsurprisingly, many people choose the later, since not driving to work for a year is, to them, a more significant sanction than the conviction. Of course, if someone does not need to drive, than the dismissal is the better option. Keep in mind that choosing the conviction is a lot easier to do when the plea offer is to Driving While Ability Impaired by Alcohol (VTL§1192.1), which is merely a traffic infraction, and not a crime. When this can be the sole plea, than the person does not obtain a criminal record.
Why would the District Attorney dismiss charges after the Defendant lost the refusal hearing? Recall that the proceedings occur in different places, follow different rules and procedures, and each is not dependent on the other. For instance, the District Attorney has to prove that the individual was driving while intoxicated, while at the Refusal Hearing, DMV only needs to show that the driver refused the test, and that the request was lawful. These are two entirely different issues, and it may very well be true that the later occurred, while the former did not. Moreover, the District Attorney operates with a much higher burden of proof, and may feel it cannot be met. The fact that a refusal was shown at the Refusal Hearing is of no help when carrying this burden in criminal court.
Keep in mind that a criminal court dismissal does not stop, or alter, a negative outcome at the Refusal Hearing. One is not influenced by the other.
When this situation arises, it is imperative that you have an experienced New York Criminal Defense Attorney in your corner. The decision to oppose a dismissal in criminal court is a bold one, and it should not be made lightly. Maybe one of these days, the legislature will permit Conditional Licenses to arise out of both the Refusal Hearing and the criminal court, so that these odd scenarios stop happening. So long as they are only available through the later, persons on the short end of a Refusal Hearing are in the odd position of needing to be convicted in criminal court.
Please call my office at 845-834-4420 to discuss this issue further, or if you are in need of a criminal attorney in New York. My office is located at 222 North Main Street, New City, Clarkstown, NY 10956.