DMV Refusal Hearing Lawyer Long Island

You Refused the Breathalyzer. Now What?

You were pulled over. The officer asked you to take a breath test. You said no. Maybe you thought refusing would help your case. Maybe you panicked. Maybe you just didn’t want to give the police evidence against you.

Whatever your reason, refusing the chemical test in New York triggers an entirely separate legal proceeding—a DMV Refusal Hearing—with its own timeline, its own penalties, and its own consequences for your license. This happens whether or not you’re ever convicted of DWI.

I’m Ed Palermo, and I’ve been handling DWI cases on Long Island for more than 30 years. I’ve represented clients at hundreds of DMV refusal hearings in Nassau and Suffolk Counties. I know what the Administrative Law Judges look for, I know how to challenge the police officer’s testimony, and I know how to give you the best chance of keeping your license.
The DMV moves fast on refusal cases. You need to act now.

Call me at (631) 265-1052 or text me directly at (631) 903-3733.

Two Separate Cases: DMV and Criminal Court

Here’s what trips up a lot of people: when you refuse the breath test, you’re facing TWO separate legal proceedings that run on parallel tracks.

The Criminal Case is prosecuted by the District Attorney in criminal court. This determines whether you’re guilty of DWI and what criminal penalties you’ll face—fines, jail, probation, a criminal record.

The DMV Administrative Case is a civil proceeding before an Administrative Law Judge. This determines whether your license will be revoked for refusing the test. The DMV can revoke your license even if your criminal case is dismissed.

Let me say that again because it’s important: The DMV can take your license even if you’re never convicted of DWI. The two cases are completely independent. Winning one doesn’t automatically win the other.

You need to defend both.

What Happens After You Refuse

Here’s the timeline:
At Arraignment (Your First Court Appearance)
The court will temporarily suspend your driving privileges under VTL §1194(2)(b)(3). This happens automatically in refusal cases. You’ll walk out of arraignment without a valid license.

Within 15 Days
The DMV must schedule your Refusal Hearing within 15 days of your arraignment. If they don’t—and you didn’t ask for an adjournment—your temporary suspension should be lifted until the hearing actually takes place.

This is your first opportunity. If the DMV fails to schedule your hearing in time, I can move to restore your driving privileges while we wait for the rescheduled hearing.

The Refusal Hearing
This is an administrative hearing before a DMV Administrative Law Judge (ALJ). It’s not your criminal trial. The rules are different, the standard of proof is different, and the consequences are different.

Since Covid, these hearings are conducted virtually through WebEx—a video platform similar to Zoom. You, your attorney, the ALJ, and the arresting officer all appear by video. The police officer who arrested you will testify. You have the right to be represented by an attorney, to cross-examine the officer, and to present your own evidence.

What the DMV Must Prove

At the refusal hearing, the DMV has to prove four things by a preponderance of the evidence (meaning “more likely than not”):
1. Reasonable Grounds
Did the officer have reasonable grounds to believe you were driving while intoxicated? This is similar to probable cause. The officer will point to things like erratic driving, odor of alcohol, slurred speech, bloodshot eyes, or poor performance on field sobriety tests.

2. Lawful Arrest
Were you lawfully arrested for DWI? If the stop itself was illegal, or if the officer lacked probable cause to arrest you, the refusal may not be sustained.

3. Proper Warnings
Were you clearly warned—in unequivocal language—that refusing the test would result in license revocation and civil penalties? The officer is required to read you specific refusal warnings. If the warnings were unclear, incomplete, or not given at all, this is a basis to challenge the refusal.

4. Actual Refusal
Did you actually refuse the chemical test? This sounds straightforward, but it’s often contested. Confusion, language barriers, medical conditions, or equipment problems can all affect whether what happened qualifies as a “refusal” under the law.

If the DMV fails to prove any one of these four elements, the refusal should not be sustained and your license should be restored.

Refusal Hearing Penalties

If the Administrative Law Judge sustains the refusal, you face:

Penalty	Amount / Duration
First Refusal
License Revocation	Minimum 1 year
Civil Penalty	$500
Driver Responsibility Assessment	$250/year for 3 years ($750 total)
Second Refusal (or refusal with prior DWI within 5 years)
License Revocation	Minimum 18 months
Civil Penalty	$750
Driver Responsibility Assessment	$250/year for 3 years ($750 total)
Commercial Driver (CDL)
CDL Disqualification	Minimum 18 months (first refusal)
Second Refusal	Permanent CDL loss
Civil Penalty	$550

Critical Point: These penalties apply even if your criminal DWI case is later dismissed or reduced. The DMV case stands on its own.

No Conditional License for Refusals

This is where refusal cases really hurt.

When you take the breath test and fail, you face a temporary suspension—but after 30 days, you can typically apply for a pre-conviction conditional license that lets you drive to work, school, and medical appointments.

When you refuse the test, you generally cannot get a conditional license.
The hardship privilege and pre-conviction conditional license that help other DWI defendants don’t apply the same way in refusal cases. If the refusal is sustained, you’re looking at a full year (or more) without any driving privileges at all.

This is why fighting the refusal hearing matters so much. If we can get the refusal dismissed—or if we can get your suspension lifted because the DMV didn’t hold the hearing in time—you may be able to preserve your ability to drive.

Common Defenses at DMV Refusal Hearings

Every refusal case is different, but here are the defenses I explore in every case:

Challenging the Traffic Stop
If the officer had no valid reason to pull you over in the first place, everything that followed—including the arrest and the refusal—may be tainted. I examine:

• What was the stated reason for the stop?
• Was there actually a traffic violation?
• Is there dashcam or bodycam footage that contradicts the officer’s account?

Challenging Probable Cause for Arrest
Even if the stop was valid, the officer needed probable cause to arrest you for DWI. I look at:

• What observations did the officer actually make?
• Were field sobriety tests administered properly?
• Could there be innocent explanations for the officer’s observations?

Challenging the Refusal Warnings
The officer must give you clear, specific warnings about the consequences of refusing. If the warnings were:

• Not given at all
• Given in a confusing or incomplete way
• Given in a language you don’t understand
• Drowned out by noise or other distractions

…then the refusal may not be valid.

Challenging Whether You Actually Refused
Not every “no” is a legal refusal. I examine:

• Were you confused about what was being asked?
• Did you have a medical condition that prevented you from completing the test?
• Was there a language barrier?
• Did you initially agree but then face equipment problems?
• Did you ask questions or request to speak with an attorney (which is your right)?

Sometimes what the officer calls a “refusal” isn’t actually a refusal under the law.

Officer Fails to Appear
If the arresting officer doesn’t show up for the hearing, the ALJ will typically lift your suspension and adjourn the hearing to a new date. This doesn’t end the case, but it restores your ability to drive while we wait for the rescheduled hearing.

Can My Refusal Be Used Against Me in Criminal Court?

Yes, potentially. Under VTL §1194(2)(f), the prosecutor can introduce evidence of your refusal as “consciousness of guilt”—basically arguing that you refused because you knew you were intoxicated.
But there are limits:

• The refusal warnings must have been properly given
• The refusal must have occurred within the two-hour chemical test window
• “Unintentional” failures to complete the test may be treated differently

This is another reason why the refusal hearing matters. How we handle the DMV case can affect what happens in your criminal case. The cross-examination of the officer at the DMV hearing can reveal weaknesses that help us later in criminal court.

“I Refused, So They Can’t Prove I Was Drunk, Right?”

I hear this a lot. The logic seems sound: no breath test means no BAC number, which means no proof of intoxication.
Unfortunately, it’s not that simple.
Prosecutors can still build a DWI case using:

• Officer observations (slurred speech, bloodshot eyes, odor of alcohol, unsteady gait)
• Your driving pattern before the stop
• Your performance on field sobriety tests
• Any statements you made
• Dashcam or bodycam video
• Witness testimony

And on top of that, your refusal itself can be used as evidence that you knew you were intoxicated.
The decision to refuse is a tradeoff. It eliminates the BAC number but creates other problems. Whether it was the right call depends on facts you only know in hindsight. What matters now is defending both cases as aggressively as possible.

What to Do Right Now

If you refused the breath test, here’s your action plan:
1. Do not drive on a suspended license.
I know this is hard, especially if you need to get to work. But driving on a suspended license creates new criminal charges and makes everything worse.
2. Call me immediately.
The DMV hearing must be scheduled within 15 days of your arraignment. If we act fast, we may be able to get your suspension lifted for procedural reasons while we prepare your defense.
3. Write down everything you remember.
What did the officer say? What did you say? Were you confused about anything? Did you have any medical issues? Were the warnings clear? These details matter.
4. Gather any documents.
Proof of work, school, or medical appointments won’t create a conditional license in a refusal case, but these documents may matter at other stages of your case.
5. Don’t discuss your case with anyone except me.
What you tell friends or family can potentially be used against you. Keep the details between us.

Frequently Asked Questions (FAQS)

Why You Need an Attorney for the Refusal Hearing

Some people think the DMV hearing is “just administrative” and not as important as the criminal case. That’s a mistake.
The refusal hearing determines whether you’ll be able to drive for the next year or more. For most people, losing their license means losing their ability to work, care for their family, and live their life.

The hearing also creates a record. The officer’s testimony can be used in your criminal case. How we handle the cross-examination—what we get the officer to admit or contradict—can affect the outcome of your DWI prosecution.

I’ve been handling these hearings for more than 30 years. I know what questions to ask. I know what inconsistencies to look for. I know how to challenge the officer’s account and expose weaknesses in the DMV’s case.

Contact Ed Palermo Today

If you refused the breath test on Long Island, you need an experienced attorney who understands both the DMV refusal process and the criminal DWI system. The two cases are connected, and the strategy for one affects the other.

I’ve represented over 2,000 clients throughout my career, including more than 1,000 DWI cases. I’ve been voted Best Lawyer on Long Island five consecutive years. I was recognized as a Trailblazer by the New York Law Journal. I have a perfect 10.0 “Superb” rating from AVVO.

More importantly, I answer my phone. When you call, you talk to me—not a receptionist, not a paralegal. I give every client my personal cell phone number because I know how stressful this situation is.

Call me today for a free consultation.
Suffolk County Office 1300 Veterans Memorial Hwy, Suite 320 Hauppauge, NY 11788 (631) 265-1052
Nassau County Office 1539 Franklin Avenue, Suite 104 Mineola, NY 11501 (516) 280-2160
East Hampton Office 9 Willow Lane East Hampton, NY 11937 (631) 265-1051
Text Ed Directly: (631) 903-3733

Related: DWI Attorney Long Island | What Happens If I Refused the Breath Test? | Aggravated DWI Lawyer | Felony DWI Lawyer | New York State DWI Laws | Case Results