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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Bill Cosby Released From Prison: But Why?

Bill Cosby has been released from prison. He walks among us again as a free man.


No, it’s not because he already served his sentence. It’s not because he was granted parole from his conviction, either. Nor did Pennsylvania’s Governor grant a pardon or issue clemency. Instead, the Pennsylvania Supreme Court overturned Cosby’s conviction on appeal.


Cosby had reached an agreement with a former prosecutor, Bruce Castor, under which Cosby was not to be criminally charged for the incident which eventually resulted in his 2018 conviction. Castor has gained more recent notoriety as being a member of former President Donald Trump’s legal team during his second impeachment trial. In short, though, Castor, while chief prosecutor for Montgomery County, Pennsylvania, had reached a deal with Cosby under which Castor agreed to grant Cosby immunity from all prosecution related to the incident if Cosby agreed to testify at a civil trial initiated by his accuser, which was to take place in 2005.


That accuser was Andrea Constand. Constand accused Cosby of drugging and molesting her at his estate in 2004. At the time, Constand was a Temple University employee, a former professional basketball player who had risen to be the head of basketball operations at the university. Castor chose to grant Cosby immunity from prosecution because he felt prosecutors would have difficulty confirming the forensic evidence from the case, without Cosby’s prior admission to the crimes, at trial.


Instead, by granting Cosby immunity from prosecution, Castor sought to force Cosby’s hand into testifying at Constand’s civil trial against him. As the Pennsylvania Supreme Court wrote in its decision, “Seeking ‘some measure of justice’ for Constand, D.A. Castor decided that the Commonwealth would decline to prosecute Cosby for the incident involving Constand, thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination.” Cosby relied on this immunity while testifying at Constand’s civil trial. As the Pennsylvania Supreme Court noted, he “proceeded to provide four sworn depositions. During those depositions, Cosby made several incriminating statements.”


Yet, years later, a new prosecutor was elected in Montgomery County. Feeling unbound by his predecessor’s immunity agreement with Cosby, new District Attorney Kevin Steele brought charges against Cosby related to the 2004 incident with Constand.


At trial on those charges, Steele and his office used Cosby’s incriminating testimony at Constand’s 2005 civil trial against him. In fact, his testimony became a cornerstone of the People’s case. Ultimately, Cosby was convicted on three counts of aggravated indecent assault in April 2018. He was sentenced to a term of three to ten years in prison.


On appeal, however, the Pennsylvania Supreme Court found an issue with the revocation of Cosby’s immunity agreement simply because a new prosecutor had taken office. As the Court wrote, “When an unconditional charging decision is made publicly, and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. No mere changing of the guard strips that circumstance of its inequity…A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain.”


The Court concluded, then, that “For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged.”


Cosby was released from prison yesterday, shortly after the Court’s decision was announced. A spokesman for Cosby told reporters, upon his release, that “This is what we have been fighting for and this is justice and justice for Black America.” Sentiments were not shared by those in the Montgomery County District Attorney’s Office. Mr. Steele, in a statement released Wednesday, noted “Cosby was found guilty by a jury and now goes free on a procedural issue that is irrelevant to the facts of the crime…My hope is that this decision will not dampen the reporting of sexual assaults by victims. Prosecutors in my office will continue to follow the evidence wherever and to whomever it leads. We still believe that no one is above the law – including those who are rich, famous, and powerful.”


Prosecutors could still, should they so choose, seek to appeal the Pennsylvania Supreme Court’s decision. Such an appeal would be to the U.S. Supreme Court, and would likely highlight the issue of due process and argue that retrial of Cosby could be granted should the prosecution refrain from including his 2005 civil trial testimony. The U.S. Supreme Court may elect against hearing the case, however, given its highly publicized nature and its near singular focus on procedural matters.


Yesterday’s decision also gave hope to others entangled in the #MeToo movement’s eye-opening allegations of misconduct against prominent men. Harvey Weinstein’s legal team issued a statement following the release of the Court’s decision, highlighting the Court’s ability to follow the facts and the law under the pressure of a case that garnered much media attention. In sum, the Weinstein legal team noted, “This decision also reaffirms our confidence that the Appellate Division in New York will reach the similarly correct decision in Harvey Weinstein’s appeal, considering the abundance of issues that cry out for a reversal.” Weinstein had previously been sentenced to serve 23 years on rape and sexual assault charges.


The Pennsylvania Supreme Court’s decision overturning Cosby’s conviction can be read here: https://cdn.cnn.com/cnn/2021/images/06/30/j-100-2020mo.-.104821740139246918.pdf.

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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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