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Having a Hearing Can be Valuable Even When Lost I have had clients, and some attorneys, who ask me, “Should I go forward with a refusal hearing?”—and despite the fact that they are unlikely to win, I tell them that I believe that they should in most cases. Participating in a refusal hearing is an excellent way to get free discovery and to cross-examine the police officer about the underlying conduct in the case—both in terms of how your client was interacting with the officer and the officer’s observations of your client. As a result, I tell my clients...
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The Difference Between a Roadside DWI Test Refusal and Police Station DWI Test Refusal  The chemical/breath test that is commonly called the Breathalyzer test is typically performed at a police station. It should be noted that there are two levels of refusal with respect to chemical testing in New York. The first is refusal on the side of the road, which means refusing to take what is commonly called the screening test; the results of this test are inadmissible at court in any case. 
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Despite the immense pressures that are being exerted in this area—i.e., peer pressures, societal pressures, Mothers Against Drunk Driving (MADD) advertising campaigns—there does not appear to be a slowdown in the number of DWI cases. I am one of two judges in the third busiest justice court in our county, and we have found that since 2012 there have been on average at least five brand new DWI cases on every single court date. I arraign at least twenty new DWI cases a month, as does my fellow judge, year round—again, despite all of the information that is available about the...

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More New York Drivers are Refusing the DWI Chemical Test   Yet another interesting trend that I have observed developing, which I view as being very dangerous, is the fact that an increasing number of people stopped for DWI are refusing to take the chemical breath test at the police station. Indeed, in the last month I have had four or five clients who did not consent to the test, and all of them are regretting their decision. There used to be reasons why an attorney might say to a client, “It would behoove you to not take the breath test”—i.e., if the client was...
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Increasing BAC Levels A trend evident to both judges and lawyers is a shift toward much higher blood alcohol content (BAC) levels in DWI cases. During my initial training on prosecuting alcohol related offense at the New York State Police Academy, we were told that a BAC of over 2.0 was considered rare, and that if the BAC was 3.0 or higher the subject would likely be unconscious or close to it. However, over the last five years I have observed that the BAC levels in DWI cases are climbing ever higher. Indeed, there was a time when two or more years would pass before I would see a DWI...





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