Breathalyzer Refusal Hearing In Albany NY – What Must be Proven

Have you been alleged to have refused to take a Breathalyzer Test (chemical test) in New York State?

If so, you are granted a hearing at the Department of Motor Vehicles (DMV) to determine whether your license will be revoked for a year. These hearings are all or nothing. Either your driver’s license will be revoked or not.

Albany DMV Refusal Hearings

The DMV refusal hearing is conducted in a small room in the back of the DMV building on South Pearl Street in the City of Albany NY and is presided over by an administrative law judge that works for the Department of Motor Vehicles. If you do not go to the hearing, your absence will result in a finding that you refused and waived the hearing. However, if you appear and the officer does not, the judge (ALJ) will grant an adjournment to allow the police officer to appear.

Once inside the room, the administrative law judge will take documents into evidence and will begin asking the police officer questions. Then, you will have an opportunity to cross-examine the police officer.

Evidence of Refusal

With that said, in order for the police officer to establish that you refused to take the Breathalyzer test, it must be proven by substantial evidence of these 4 elements:

  1. Did the police officer have probable cause to believe that you have been driving in violation of any subdivision of VTL 1192?
  2. Did the officer make a lawful arrest for common law DWI under NY VTL 1192(3)?
  3. Did the police officer provide sufficient warning — in clear and unequivocal language, prior to your refusal that your refusal to submit to a chemical Breathalyzer test would result in the immediate suspension and subsequent revocation of your license even if you are found not guilty on the criminal charge(s)?
  4. Did you refuse the Breathalyzer and if so, was the refusal persistent?

It is my experience that your best chance of success is on elements 3 and 4.

Given the stakes of a DMV refusal hearing in NY State, you should never appear at one without an experienced lawyer. Moreover, even if you think that you are going to lose, a skilled DWI lawyer in Albany will use the DMV refusal hearing to get the police officer’s story out; if the story changes at trial — as it often does — it can be used to your benefit at trial or in negotiations with the prosecutor.

Do not hesitate to contact Hug Law today if you refused a Breathalyzer test in the Albany / Capital Region.

Contact us for a FREE initial consultation now.


Location of Albany NY DMV

224-260 S Pearl Street
Albany, NY 12202