In New York State, if you are arrested for Driving While Intoxicated, you will be asked to take a “chemical test” once you are brought to the police station. Most times, this is a test of your breath for Blood Alcohol Content. New York is an “implied consent” state, meaning that when you were issued your license, you gave consent to submit to a chemical test whenever an officer later determines there is probable cause to believe that you are driving while impaired or intoxicated, either by drugs or alcohol.
After a motorist is arrested for Driving While Intoxicated by Alcohol or Driving while Ability Impaired by Drugs and brought to the police station, the motorist will be Mirandized and will also be provided with what are known as the “DWI warnings,” in which an officer will read the following language from a card that all officers carry:
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 found guilty of the charge for which you are arrested. Your refusal to submit to a chemical test, or any portion thereof, can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest.
Although not required, police agencies across the state require their officers to deliver this warning twice. If, after having been warned, the arrested motorist refuses to give a sample of blood or breath, their actions will be reported as a “refusal” to the arraignment court. At arraignment, the Court will be required to immediately suspend the motorist’s driver’s license, and will then refer the refusal to the DMV for an administrative hearing, where an Administrative Law Judge will determine four issues:
- Whether there was probable cause for the stop of the motorist.
- Whether there was probable cause to arrest the motorist for DWI (or DWAI drugs).
- Whether the motorist was warned of the consequences of refusing to submit to a chemical test.
- Whether the motorist thereafter refused to submit to the chemical test.
If all four issues are proved, the motorist’s privilege to drive in New York will be revoked for at least one year.
In the pre-Covid days, these hearings were usually held in person, a few days after the arraignment. Since 2020, the hearings have been held virtually, and they are typically held a couple of months after arraignment. This timing now matters, because if the hearing is not held within 15 days after arraignment, the suspension will be automatically lifted, pending the hearing. If the motorist loses the hearing, the license will be immediately revoked for one year. See NYS VTL 1194.
But what happens if, after being warned, the motorist asks to speak to an attorney? Does this constitute a refusal?
The short answer is: it depends. DMV regulations require that police give a motorist a “reasonable opportunity” to contact a lawyer to determine whether to take the chemical test. What constitutes a “reasonable opportunity” depends on the facts. One thing is certain: a reasonable opportunity does not guarantee that a person must be able to speak with an attorney prior to taking (or refusing to take) a chemical test. While police are not required to ensure that the motorist speak to a lawyer, police also cannot interfere with or prevent a motorist from speaking with an attorney.
Recently we won a refusal hearing for a client on this issue. What happened was as follows. The police brought our future client (the client first contacted us several days after the following events) to the station and confiscated his personal possessions, including his cell phone. The booking process was started, during which the officer read the warnings outlined above. Our future client wisely told the officer that he would like to speak to an attorney before deciding whether to submit to the chemical test. Instead of giving our future client his cell phone, or even a phone book, to enable him to look up and call an attorney, the police officer suggested that he, the officer, would dial a particular outfit focusing exclusively on DWI defense (one that is frequently advertised on the internet and billboards). Our future client, not understanding the officer was suggesting a particular firm, said, “OK, sure.” The officer (we later learned from the officer’s body worn camera), typed in a website address, dialed the number shown, and handed the receiver of the phone to our future client.
What the future client did not then know – but what it later became apparent that the officer did then know – was that our future client was not going to get to speak to an attorney on that call. Instead, our future client found himself on the phone with a non-lawyer intake specialist, whose main job was essentially to try to rope in clients for this outfit. Once our future client explained that he was being asked to take a chemical test and that he would like some legal advice, the intake specialist said that she would play a recording for our client. The recording offered no meaningful advice (how could it?), but merely explained the consequences of refusing to take a chemical test.
When the recording ended, the intake specialist offered to play it again, and our future client was no better off the second time he heard the recording. Our future client asked the intake specialist when he would be able to talk to an attorney. The intake specialist said that an attorney would call our future client back, but did not take down the police station number, and it is doubtful whether anyone from that outfit ever attempted to reach our future client that night. After hanging up, our future client reiterated to the officer that he would not take the test until he spoke to a lawyer, but of course no one ever called back, and the officer marked it down as a refusal
The next day the client called our firm and we were retained. As soon as we heard this story we knew there was a good issue for the refusal hearing. At the refusal hearing, the client testified that he had explained that he would not take the test until he spoke to a lawyer, and that the officer had had dialed a number the officer had selected that provided only a recording, and no opportunity to speak to an actual lawyer. Funnily enough, in response, the officer argued that “the recording provides legal advice.” When the officer did that, it was clear that he knew what would in advance what would happen when he dialed that particular “DWI specialist firm,” and that by dialing that number his arrestee would get only a recording, and would not speak to a lawyer.
Perhaps the officer was tired of those times he had to wait while prior arrestees searched the internet and tried to get ahold of lawyers on the phone, and so he made the decision to use a number that he knew would provide a canned recording masquerading as “legal advice.” At the hearing, the Administrative Law Judge, however, did not believe that this was a reasonable opportunity to speak with a lawyer, and the ALJ dismissed the refusal and closed the case. Our client avoided a revocation and left with his license completely intact. We were glad to win this refusal hearing for our client.
It’s too bad that the officer didn’t have Hacker Murphy at his fingertips. When people call Hacker Murphy with an urgent legal matter, no matter the time of day, they get to speak to a real lawyer – not to some intake specialist. And our lawyers provide real advice – we never play canned recordings to our callers. Remember to preserve your right to legal advice: call Hacker Murphy whenever you are faced with a tough legal question.