When a person registers and receives a driver’s license in New York, that person also gives implied consent to taking a chemical test in case he or she is ever arrested for driving while intoxicated (DWI). Not only does a person face increased penalties for refusing to participate in a breathalyzer or other chemical test, that person also will likely meet harsh penalties from the DMV. These penalties include a revoked license, a hefty fine, and even jail time.

The purpose behind these tests is that they are assessments to determine someone’s blood alcohol/drug content and can be used to help convict drivers alleged to have been driving drunk. Knowing this, many suspected drunk drivers want to refuse the tests, hoping the absence of evidence will work in their favor. Following an arrest in New York, you will have a refusal hearing within fifteen days at the Department of Motor Vehicles (DMV). If you cannot make it and fail to go, you will automatically lose your right to a hearing. At this point, the DMV can take whatever steps it likes against you.

Why Some People Refuse Chemical Tests

Despite the high likelihood that refusing to take a breathalyzer will lead to additional problems, many New York motorists refuse to engage in a breathalyzer or chemical test. Some of the most common reasons why people refuse these tests include:

  • The belief that refusing to provide breathalyzer results will make it more difficult for the state to establish sufficient intoxication evidence.
  • Dislike or fear of law enforcement.
  • Moral standing against police testing.

Remember, even if you refuse to provide a breathalyzer or chemical test results, New York State can still establish intoxicated driving in other ways. It is a much better idea to provide breathalyzer results in most situations and then retain an experienced New York DUI/DWI attorney who can help you create a strong defense to respond to any ensuing charges.

There are, however, some situations in which a person has a valid reason for refusing a breathalyzer test. These situations include:

  • Improper directions. Law enforcement must inform drivers clearly and directly about what will happen if the driver refuses a test. If law enforcement does not provide sufficient instructions about how to blow into the breathalyzer, you should refuse the test.
  • Medical conditions. Some medical conditions can prevent a person from providing enough air for an accurate blood alcohol content test. Some of these conditions include chronic obstructive pulmonary disease and emphysema.
  • Your Sixth Amendment right has been denied. Under the Sixth Amendment, people in certain situations are entitled to the effective assistance of counsel. The right to counsel is triggered most times following three events — the beginning of criminal prosecution, before arraignment, or by requesting counsel or invoking the right to an attorney while in police custody. Since the late 1960’s case of People v. Gurnsey, New York courts have held that an individual detained for a DWI has a qualified right to an attorney before submitting to a breathalyzer. As a result, Motorists in New York are allowed to speak with a lawyer before submitting a blood alcohol content test. You should always exercise this right. If law enforcement prohibits you from accessing your lawyer, you should refuse the breathalyzer.

The Penalties for Refusing a New York Breathalyzer or Chemical Test

A person in New York can end up facing several penalties for refusing a breathalyzer or chemical test. These penalties include:

  • Civil fine. Motorists face a fine of $500 for refusing to take a breathalyzer test.
  • New York law enforcement can arrest an individual and place them in custody, pending arraignment if they refuse a breathalyzer test.
  • Suspended license. Refusing either a breathalyzer or chemical test in New York results in a one-year license suspension. A second or additional refusal within five years results in an 18-month suspension.

Defenses to Breathalyzer Refusals

There are several strong defenses that an experienced attorney can often help you raise if you refused to provide breathalyzer results in New York, which include:

  • The arresting officer must make it clear that your license will be revoked if you refuse the test. Law enforcement must state this information twice. If these steps are not taken, it might be possible to have your driving privileges restored. In some cases, violation of these orders can even result in having charges dismissed.
  • Law enforcement must have probable cause to perform the stop of your vehicle. If probable cause does not exist, the resulting charges will likely be dismissed.

Speak With a Driver’s License Attorney Today

If you believe that you have been unfairly refusal a driver’s license or want to defend against the loss of such privileges, one of the best steps you can take is to speak with an experienced attorney. Contact Nave Law Firm today at 855-349-NAVE (6283) to schedule a free case evaluation.


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Nave Law wins suit against City of Albany to protect Reverend’s civil rights.


As part of Nave Law Firm’s efforts to give back to the communities we practice in, our own Derek Andrews took action after reading a Times Union article about a local woman’s plight against a local government who stonewalled her efforts to obtain body camera recordings of an incident that involved her.


In 2019, uniformed members of the Albany Police Department wearing body cameras forcibly removed Reverend Cheryl Hawkins, a street-reach minister in the New York Capital District, from a public park as she preached and sang Christian hymns, for which she had received a special event permit from the City of Albany. That removal violated her constitutionally-guaranteed rights to free expression. As part of a lawsuit, her civil rights attorney requested those body camera recordings from the city through New York’s Freedom of Information Law but was rebuffed, having been told that they were protected and confidential because of Civil Rights Law Section 50-a.


Mr. Andrews helped both Ms. Hawkins and her civil rights attorney by filing an Article 78 special proceeding, a type of lawsuit, against the City of Albany and the Albany Police Department, claiming that they violated Ms. Hawkins’ right to free access to body camera recordings of that incident.


Although the city produced those recordings before the conclusion of the lawsuit, Judge David Weinstein of the Albany County Supreme Court agreed with Mr. Andrews’ arguments when he issued a decision at the end of 2020 stating that Ms. Hawkins had substantially prevailed and that the city was unreasonable in originally denying her access. That last part meant that the city Times Union Article, which resulted in a five-figure settlement. Ms. Hawkins will now continue her lawsuit against Albany for violating her civil rights.


When asked for comment by Reverand Hawkins, she responded:

“Mr. Andrews saw the Times-Union Newspaper Front Page Huge Article (February 17, 2020). He then contacted my attorney and wanted to see how he could help.  He felt that I was facing an injustice.  I was already paying another lawyer big money to represent me, and I could not afford a second law firm.  Derek then spoke with the leadership team with Nave Law Firm, and the team decided to take the case at no cost to me.  

I was so grateful that he believed in me enough to advocate for me and cared enough to help me at no cost.

The best part is that he WON THE CASE; he even won the city’s and the cop’s appeal filed in Albany County after winning the case.”


Nave Law Firm is grateful for the opportunity to have assisted Ms. Hawkins in her pursuit of justice.



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Decriminalizing Possession of Hard Drugs

Oregon seems to be leading the way in the war . . . on the war on drugs while New York falls further behind. In a more sizable margin than either Biden or Trump would secure in this election, nearly 59% of citizens in Oregon voted to decriminalize possession of small amounts of hard drugs like heroin and cocaine.

Their decision also supported greater access to treatment for those who need it, which is paid for by the tax proceeds from marijuana sales. New York took a step in the right direction when they decriminalized possession of marijuana last year, but they remain several steps behind a large swath of the country that has legalized marijuana possession outright, including our next-door neighbors. While legislators and Governor Cuomo are interested in legalization, it’s unlikely to happen in the next year or two. Here’s why the legalization of marijuana, and other drugs, is worthwhile: not only would it ameliorate years of disproportionate effects of criminal drug possession on communities of color but it would give those with addictions greater access to higher-quality treatment. It also wouldn’t hurt to make some money by taxing those “products,” which could prove to be cleaner and safer than those cut with harmful and toxic chemicals. By the way, we certainly don’t mean to imply that it should be legal to drive while impaired by a drug, whether it’s legal or illegal. Please don’t do that.

We’re only suggesting that the war on drugs was misguided and that Oregon, and other states who are following suit, are headed in the right direction. Let’s convince New York to do the same.


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New York State Driver’s License Issues

After receiving notice that your New York driver’s license has been revoked or suspended, it is easy to feel overwhelmed and uncertain about how to respond. During this difficult time, it is important to remember that you have the opportunity to fight for your driving privileges. An experienced New York driver’s license attorney can support you during this process. It also helps to arm yourself with as much knowledge as possible about suspended and revoked licenses in New York State.


Reasons People are Summoned to Hearings in New York

Various factors might lead a person to be summoned to appear before the New York Department of Motor Vehicles for a hearing, but some of the most common reasons include:


  • Alcohol-related offenses like drunk driving.
  • Involvement in a deadly accident or an accident that resulted in a serious injury.
  • Refusing to submit to a breath test.
  • The accumulation of too many points on a person’s driver’s license.
  • Traveling at high speed.
  • Medical review.
  • Failure to pay tolls.
  • Driving under the influence of alcohol when under 21.

Suppose your license has been revoked or suspended. In that case, a skilled traffic attorney can help create a plan to get back to driving as soon as possible while also helping you address fines, points,and limiting how the event will impact your motor vehicle insurance moving forward.


Restricted/Conditional Licenses in New York


Even though license suspension is a common result of many driving-related offenses in New York, drivers are still sometimes able to obtain either conditional or restricted licenses for purposes like commuting to work or school, transporting children to daycare, attending court-required classes, and traveling to medical appointments.


One of New York’s driving law’s most confusing areas is the difference between conditional and restricted licenses. The Department of Motor Vehicle issues conditional licenses to qualified drivers whose New York driver’s license was suspended or revoked due to an alcohol or drug-related violation. The Department of Motor Vehicles can also issue a restricted use license to a driver who qualifies and whose license is either suspended or revoked due to violations or incidents that are not alcohol or drug-related.


Suppose a person in New York State has had a conditional or restricted license issued within the past five years. In that case, the Department of Motor Vehicles will sometimes issue a restricted license provided the individual’s license was not revoked for alcohol use, criminal violations, or drug use.


If a person has not had a conditional or restricted license issued within the last five years, the individual might be eligible to complete an Impaired Driver Program. On successful completion of this program, an individual will receive a “Notice of Completion,” which in some cases will result in a person’s license being automatically restored or a person becomes eligible to apply for a new license. Remember, however, that a person will be dropped from the program and unable to obtain a conditional license if he or she does not attend class, does not satisfactorily participate, or does not pay program fees.


Multiple Alcohol or Drug-Related Driving Convictions

If your license is revoked and you have three or more DWI/DWAI-Drugs/DWAI convictions on your license, the DMV may be denying your ability to get relicensed. There are specific rules about your ability to get relicensed when this occurs.


If you have three or four alcohol/drug-related convictions, the DMV will likely deny your ability to get relicensed for a minimum of 5 years. If you have a serious driving offense on top of the three or four alcohol-related offenses, the DMV will deny your ability to get relicensed FOR LIFE.


If you have five or more alcohol/drug-related convictions, the DMV will deny your ability to get relicensed FOR LIFE.


If your license has been revoked because of multiple convictions, a skilled traffic attorney can help create a plan so you can get back.


Numerous Suspensions on Your License

If your license is suspended because you failed to answer traffic infractions or pay a fine, you could be charged with a misdemeanor or even a felony the next time you get pulled over.


The reason for this is because every time you fail to answer a traffic infraction or fail to pay a fine, the Court will put a SCOFF, or a suspension, on your license.


You must speak to an attorney about your license status if you fall into this category. An experienced attorney will know how to handle and take care of the suspensions on your license so that you can drive free and clear.


How a New York Driver’s License Attorney can Help

Whether you need counsel at a DMV hearing, it is your first time DWI, you failed to answer a traffic infraction, or you have multiple convictions, an experienced attorney can help you get your license back.


Contact an Experienced Driver’s License Attorney

If you are convicted of a driver’s license offense in New York, you can end up facing some serious consequences. One of the best ways to handle these charges is to retain the assistance of an experienced attorney. Contact Nave Law Firm at 855-349-NAVE (6283) today.

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