516-972-1212

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Garden City, NY 11530

DWI "Refusal" Cases in Nassau County, NY

If you were arrested for DWI (driving while intoxicated) and then refused to submit to a chemical test of your blood, breath or urine, you should contact an experienced criminal defense attorney. Call Law Office of Stephanie Selloni at 516-972-1212 to discuss your case today. 

If the driver refuses a lawful breath test then the driver’s license will be immediately suspended and thereafter revoked for one year. We can help you challenge that suspension during an administrative refusal hearing. The charge of Driving While Intoxicated (DWI) alleges that a person driving (drove) or operated a motor vehicle while in an intoxicated state under the Vehicle and Traffic Law Section 1192(3). Law enforcement officers can even make an arrest for DWI if the person is sitting behind the wheel of a parked vehicle in a parking lot if the engine is running.

If you were charged with drunk driving and refused chemical testing then call an experienced DWI defense attorney at the Law Office of Stephanie Selloni. We defend clients charged in DWI refusal cases Garden City, Hempstead, Westbury, Floral Park and the surrounding areas in Long Island.

Stephanie Selloni represents people throughout Nassau County, Suffolk County and all five boroughs of New York City.


Issues in DWI Refusal Cases in New York


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Statutory Right to Refuse Chemical Testing

A defendant has a “qualified” statutory right to decline to voluntarily take a chemical test of the blood, breath or urine. In many ways, the law presumes that declining to take the test comes with the understanding that the refusal will result in the immediate suspension and ultimate revocation of the driver's license for one year.

Furthermore, the refusal also comes with the knowledge that the prosecutor will elicit evidence of such refusal at any subsequent criminal trial. See Vehicle and Traffic Law § 1194 [2][b], [2][d], [2][f]. The implied consent warnings discuss the consequences of the refusal and are intended to be coercive.


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Inferences of "Consciousness of Guilt" in a DWI Refusal Case

At trial in a DWI refusal case, the jury is often instructed that “Under our law, if a person has been given a clear and unequivocal warning of the consequences of refusing to submit to a chemical test and persists in refusing to submit to such test, and there is no innocent explanation for such refusal, then the jury may, but is not required to, infer that the defendant refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol in violation of law.”  

Under VTL § 1192(2)(f), the driver's willful failure to submit to a chemical test is generally admissible at trial. The refusal can be used by the prosecutor to argue “consciousness of guilt.” In other words, the prosecutor will argue that the defendant refused the officer’s request for a blood, breath or urine test because the defendant knew that if he or she took the test, the result would help prove the law violation.


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Evidence of Intoxication in a DWI Case

Under the DWI laws of the State of New York, a person is in an intoxicated condition when the person “has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver.”

Furthermore, the law does not require any particular chemical or physical test to prove that a person was in an intoxicated condition. To determine whether the defendant was intoxicated the jury is often instructed that they may consider all the surrounding facts and circumstances including: 

  • the defendant’s physical condition and appearance, balance and coordination, and manner of speech;
  • the presence or absence of an odor of alcohol;
  • the manner in which the defendant operated the motor vehicle;
  • opinion testimony regarding the defendant’s sobriety, if any;
  • the circumstances of any accident, if any; and
  • the results of any test of the content of alcohol in the defendant’s blood, if any.

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Implied Consent to Chemical Testing in a DWI Case

Section 1194(2)(a) of the Vehicle and Traffic Law provides that “[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva,” where a police officer has reasonable grounds to believe that the motorist has violated section 1192 of the Vehicle and Traffic Law. 


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Requirement for Chemical Testing

The test must be conducted within two hours after the motorist has been stopped or placed under arrest for such violation. See Vehicle and Traffic Law § 1194[2][a]. The administration of the breath test “is a time-sensitive proposition; to maximize the probative value of BAC evidence, the police endeavor to administer chemical tests as close in time as possible to the motor vehicle infraction, typically within two hours of an arrest." People v. Smith, 18 N.Y.3d at 548, 942 N.Y.S.2d 426, 965 N.E.2d 928. 


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License Suspension Hearing After a DWI Refusal

If the police officer alleged that you refused to submit to a breath, blood or urine test, then your license will be suspended at arraignment. The refusal hearing will be scheduled within 10 days after the arraignment.

This license suspension action is separate from your criminal case. A date is set for the Refusal Hearing where your attorney can contest the suspension of your New York Driver's License to help you keep your driving privileges. You may win your refusal hearing for any number of reasons including the arresting officer's failure to appear or the lack of certain important evidence in the case.
If your attorney is not able to invalidate the suspension at the DWI refusal hearing, then the length of the driver license suspension depends on several different factors including: 

  • your BAC at the time of your DUI arrest; and
  • the number and timing of any prior DWI or related convictions.

Even if you are not successful at getting your suspension invalidated at the refusal hearing, your DUI defense attorney still has the opportunity to gather important evidence and develop defenses that might become critical in winning your criminal case at motion hearings or trial.


New York's Jury Instruction in a DWI Refusal Case

The standard jury instructions provide that if there was evidence presented at trial of an improper refusal to submit to a chemical test, then the jury should be instructed as follows:

Under our law [in the State of New York], if a person has been given a clear and unequivocal  warning  of  the  consequences  of  refusing  to submit to a chemical test and persists in refusing to submit to such test, and there is no innocent explanation for such refusal, then the jury may, but is not required to, infer that the defendant refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol in violation of law.


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Finding a DWI Refusal Attorney in Nassau County

If you were arrested for DWI and refused to take the breath test or the blood test then contact an experienced criminal defense attorney at the Law Office of Stephanie Selloni to discuss your case. Find out what you need to do right now to protect your driver's license from a suspension and revocation.

Whether you DWI refusal case is pending in Nassau County, Suffolk County, Garden City, or the surrounding areas of Long Island, contact Law Office of Stephanie Selloni today at 516-972-1212.