You’re pulled over, the lights flash, and the officer asks for a breath test. In the swirl of nerves and second-guessing, you say “no.” Now what? In New York, refusing the chemical test (the official breath, blood, or urine test after arrest) triggers a separate DMV process with its own timeline and penalties—independent of your criminal DWI case. Here’s a clear, real-world walkthrough of what happens next and how a defense lawyer can help.
After an arrest where you refuse the chemical test, the court at your arraignment will temporarily suspend your driving privileges pending a DMV “Refusal Hearing.” This temporary suspension at arraignment in refusal cases comes from VTL §1194(2)(b)(3).
That DMV Refusal Hearing must be scheduled within 15 days of your arraignment (unless you or your lawyer ask to adjourn). If it isn’t timely held, the temporary suspension should be lifted until the hearing is actually conducted.
The DMV hearing is a civil, administrative proceeding before an Administrative Law Judge (ALJ). It’s not your criminal trial. The ALJ typically considers four core questions:
These issues and their statutory roots are laid out in VTL §1194(2). If the People prove all four by a preponderance of the evidence, the refusal is “sustained.”
If the officer doesn’t appear for the first hearing date, ALJs commonly lift the suspension and adjourn the hearing to a new date (you’ll get notice by mail). That doesn’t end the case—it just restores your ability to drive pending the rescheduled hearing.
If the ALJ sustains the refusal:
Importantly, these DMV sanctions happen even if your criminal DWI charge is later reduced or dismissed. The DMV case stands on its own.
Often, yes. New York law allows a prosecutor to introduce evidence that you refused the test as “consciousness of guilt”—but only if you were properly warned and you persisted in refusing. The Court of Appeals has confirmed this under VTL §1194(2)(f).
There are limits. For example, refusals outside the two-hour chemical-test window or “unintentional” failures to complete a test may be excluded. These are case-specific fights your lawyer can raise.
This trips up a lot of people. The hardship privilege (and pre-conviction conditional license) that some drivers receive after a “prompt suspension” for testing does not apply the same way in a refusal case. In fact, refusing generally makes you ineligible for a hardship or pre-conviction conditional license. You may regain limited privileges only if/when the temporary suspension is lifted (e.g., hearing not held in time) or after other case developments. Plan on no hardship license solely because of a refusal.
Some folks assume “no breath number = no DWI.” Not so. Prosecutors can build a case with officer observations, driving pattern, video, statements, and other evidence. Meanwhile, your refusal can be used against you (if properly warned). The tradeoff is real, and the optimal choice depends on facts you only know in hindsight—another reason to focus on the hearing and defense strategy now.
I’ve handled DWI and refusal matters across Long Island for over three decades. The value I bring starts immediately: pushing the DMV for a timely hearing, challenging the stop, the arrest, and the clarity of the warnings, and positioning your testimony (or silence) to avoid unforced errors. If the officer misses the first date, we’ll work to get your suspension lifted pending the new hearing. If the hearing proceeds, we press the People’s proof on each element and preserve anything useful for the criminal case.
Refusal cases move fast, and the early moves can change your driving status for a year or more. If you refused the breath test, or you’re unsure whether what happened counts as a “refusal”, get help now.
I’m Ed Palermo. I defend people in Nassau and Suffolk County every day. Contact me for a free, confidential consultation and let’s talk strategy for your DMV hearing and your criminal case. I’ll explain your options in plain English and fight for the best possible outcome.
Blue lights in the mirror. A tap on your window. In that moment, it’s easy to feel cornered—especially when the officer asks you to blow. I’ve spent over three decades defending Long Islanders in DWI cases, and this is one of the most common (and stressful) questions I hear: “Should I take the breath test?” Truthfully, it depends on which test we’re talking about, what the facts look like, and what risks you’re willing to take. Let me walk you through the decision the same way I would if you called me from the roadside or from the precinct.
This is the small handheld device an officer may ask you to blow into at the scene. It’s a screening tool used to help the officer decide whether to arrest you. In New York, the roadside screening test is treated differently from the stationhouse “chemical” test. Refusing the roadside test is typically a traffic infraction, not a separate crime, and results from these devices are generally not used at trial the same way a chemical test is, though they’re often used for probable cause.
After arrest, police will ask for an evidentiary “chemical” test on a calibrated machine (or through blood/urine). New York’s implied-consent law makes refusal a big deal: it triggers an administrative DMV case, immediate license consequences, and it can be used as evidence at trial if proper warnings are given.
For many drivers, there is little upside to the roadside PBT. If the officer already believes you’re impaired, a low PBT reading might not stop an arrest. If you refuse, you’ll likely still be arrested and you may get a ticket for refusing the screening test (again, generally a traffic infraction). The PBT result itself rarely becomes the centerpiece of a trial the way a chemical test does. In short: the roadside device doesn’t help you much, and refusal here does not carry the severe DMV penalties that come with refusing the chemical test.
This is the harder question, because a chemical test comes with real stakes either way.
Commercial drivers (CDL) and under-21 drivers face even tougher outcomes; CDL consequences can include permanent revocation in some circumstances, and under-21 drivers face Zero Tolerance rules. If you hold a CDL or are under 21, the calculus leans heavily toward a careful, case-specific plan.
In New York, once you’re under arrest, you have a limited right to consult a lawyer before deciding on a chemical test—if you ask and if it won’t unduly delay the process. Courts have held that police shouldn’t block a reasonable chance to speak with counsel (including letting you know if your lawyer is trying to reach you), and in some cases, blocking that access has led to test results being suppressed. Practically, you should ask to call me as soon as you’re allowed.
If you’re ultimately convicted of a DWI misdemeanor or felony in New York, the court will require an ignition interlock device during your sentence period, and your license will carry an ignition-interlock restriction. This is separate from the refusal decision, but it’s one more reason to think holistically about the case strategy from day one.
If you blew .08 or higher, New York’s prompt-suspension law usually means your license is suspended at arraignment. You may seek a hardship privilege (a narrow court-issued permission for essential driving), and many people later qualify for a pre-conviction conditional license through the DMV after a short waiting period if they enroll in the Impaired Driver Program. If you refused, the court suspension and DMV hearing path are different—but there are still ways to keep limited driving privileges in some scenarios. Timing and paperwork matter, so talk to me right away.
There is no one-size-fits-all answer. The roadside PBT rarely helps you. The stationhouse chemical test presents a real trade-off: a number that may convict—or clear—you, versus refusal penalties that hit immediately and can be shown to a jury. The right move depends on your drinking history that night, your driving/stop facts, your license status (CDL? under 21?), and what we can reasonably anticipate from the evidence.
If you’re reading this before anything happens, save my number and ask to call me if you’re ever arrested. If you’re reading this after a stop: contact me now. I’ve defended thousands of people in Suffolk and Nassau Counties, and I’ve been voted Best Lawyer on Long Island for five consecutive years. I’ll move quickly to protect your license, your record, and your future. Call me for a free, confidential consultation.
If you’re reading this, you (or someone you love) is likely anxious about what a New York DWI could mean for your license, your job, and your future. I’ve represented Suffolk County residents in Nassau and Suffolk courts for over three decades, and I can tell you: the consequences are real, but so are your defenses and options. Here’s a clear, plain-English guide to what the law actually says and how I help clients navigate it.
New York has several alcohol/drug driving offenses that apply statewide—including Suffolk County:
These are the headline penalties the judge can impose at sentencing. The exact outcome depends on your record and case facts.
These ranges come straight from the NY DMV’s penalty schedule.
Again, these are the published DMV ranges.
Expect prosecutors to take these cases seriously; the statute and DMV table reflect the heightened penalties.
New York escalates quickly: a second DWI/DWAI-Drug or DWAI-Combination within 10 years is a Class E felony (up to 4 years in state prison), and a third within 10 years is a Class D felony (up to 7 years). License revocations lengthen as well.
Driving intoxicated with a child in the car is charged as a Class E felony and can carry up to 4 years in prison—even for a first arrest. Separately, New York requires ignition interlock devices (IIDs) upon any misdemeanor or felony DWI conviction, for at least 12 months during probation or conditional discharge.
If you’re convicted of a misdemeanor or felony DWI offense (alcohol or drugs), the court must impose an IID requirement. For most adult cases, plan on at least 12 months with the interlock installed in any vehicle you own or operate. Judges add an IID restriction to your license as well.
Refusing the breath, blood, or urine test triggers DMV penalties even if your criminal case is later dismissed. For a first refusal:
Repeat refusals carry longer revocations and higher civil penalties. These are DMV-administrative, not criminal, and they happen through a DMV refusal hearing.
On top of fines and court surcharges, New York adds a Driver Responsibility Assessment when you’re convicted of an alcohol/drug-related driving offense or when you refuse testing. It’s $250 per year for three years (a total of $750) payable to the DMV. If you don’t pay, the DMV can suspend your license.
For alcohol-related misdemeanors, expect a mandatory surcharge and fees totaling about $395; for felonies, about $520 (plus $5 more in town/village courts). These are statewide add-ons that appear on top of any fines the judge imposes.
License suspension/revocation periods vary by charge. Many first offenders may be eligible for a conditional license—limited, essential driving—by enrolling in New York’s Impaired Driver Program (IDP). Eligibility isn’t automatic; the DMV determines it, and a judge can bar participation in some cases.
Different rules apply if you’re under 21. A BAC of .02–.07 triggers administrative penalties (typically a six-month suspension and civil fee) and separate consequences for refusals.
These aren’t “penalties” in the statute, but they affect day-to-day life and we plan for them.
Every case starts with the stop: Was there lawful probable cause? I analyze the initial approach, the roadside investigation, and whether standardized field sobriety tests were administered and interpreted correctly. I scrutinize the chemical test from collection through calibration and maintenance records, and I consider medical conditions (e.g., GERD, diabetes/ketosis) that can affect results. Where appropriate, I negotiate to reduce criminal exposure (for example, to a non-criminal traffic infraction in the right fact pattern) or structure outcomes around treatment, evaluation, and community-based conditions that satisfy the court while protecting your future.
I’ve been honored to be voted Best Lawyer on Suffolk County five consecutive years and have helped thousands of clients avoid the worst-case scenarios. The earlier you bring in counsel, the more options you tend to have.
Jail is legally possible (up to a year for DWI), but many first-offense outcomes on Suffolk County focus on probation or conditional discharge, with treatment, IDP, and IID compliance. The right strategy and clean compliance matters.
For a first DWI, plan on at least a 6-month revocation (Aggravated DWI is typically 1 year). You may qualify for a conditional license during the revocation/suspension if you enroll in IDP.
A refusal triggers a separate DMV revocation of at least 1 year and a $500 civil penalty regardless of what happens in criminal court plus the DRA fee of $750 over three years.
A DWI on Suffolk County is serious but manageable with the right plan. You’re facing a mix of criminal penalties, DMV consequences, IID obligations, and financial assessments. My job is to protect your record, your license, and your livelihood while guiding you through every step from the first court date to license restoration.
Take the next step and contact me. If you or a loved one has been arrested in Nassau or Suffolk County, call me, Ed Palermo. I’ll review your paperwork, explain your exact exposure under New York law, and build a strategy tailored to you.