"If I refused to take the breathalyzer, can I get a conditional license?"
By DWI Attorney Ramy Louis of The Law Offices of Lance Fletcher, PLLC
If I refused to submit to the chemical test (breath, blood, or urine), can I get a conditional license? The simple answer is no, not usually. But the law on conditional licenses in refusal cases is complex and in some situations you may be able to legally drive while your criminal case is open and also if you're convicted.
In a refusal case the arraignment the court will temporarily suspend your driving privileges pending the outcome of a DMV refusal hearing. VTL 1194(2)(b)(3). This DMV refusal hearing is an administrative "civil" hearing separate from your criminal case. It must be held within 15 days after your arraignment unless you request to postpone it. If this hearing is not held within 15 days through no fault of your own, such as the officer does not show up, then the hearing will be rescheduled and any temporary suspension will be lifted. 15 NYCRR 127.9 (c). If the officer does not show up, your attorney can request an immediate reinstatement of your privilege to drive.
If the refusal hearing is held and you do not win, then the DMV will revoke your license for at least 1 year. You will not be eligible for a conditional license unless you accept a plea offer or go to trial on your criminal case.
The DMV refusal revocation is separate and apart from a suspension or revocation on your criminal case to the extent that there is no overlap. Here are two examples:
Example #1. You attend your refusal hearing before resolving your criminal case and DMV suspends your license for one year. If you then accept a DWI related plea on your DWI case, the judge will suspend your license for as little as 90 days. That suspension will also begin immediately but the DMV refusal suspension in this example will be longer. Interestingly, you now may be eligible for a "post conviction" conditional license not only during the 90 day suspension period on your criminal case but also during the remaining DMV refusal suspension as well.
Example #2. You attend your refusal hearing and DMV suspends your license for one year. You are then found not guilty on your criminal case. Here, you are still not eligible for a conditional license because you were not convicted and your license will stay suspended.
A conditional license allows you to drive to and from:
- court ordered probation activities,
- DMV for issues relating to your license,
- for a 3 hour daytime period on a day you are not working or at school,
- a doctor's office or hospital,
- a class or activity as part of an alcohol and drug rehabilitation program where your attendance is required, and
- a place, including a school, at which your child is being care for.
The laws on DWI breathalyzer refusals and conditional licenses are complicated and if you are charged with DWI in New York a good DWI defense lawyer will fight to help you keep your driving privileges. The attorneys at The Law Offices of Lance Fletcher, PLLC will be able to do just that.