In a decision recently handed down by the New York State Court of Appeals, Matter of Pedro, 2022 N.Y. Slip Op. 00959, the Court has held that a defendant’s refusal to take a chemical test to determine their blood alcohol content (BAC) is admissible as evidence in a Department of Motor Vehicles (DMV) refusal hearing, regardless of whether that refusal fell under the “two-hour rule” as applicable for driving while intoxicated (DWI) cases. Prior to the decision, some Administrative Law Judges had held that evidence of a defendant’s refusal to submit to a BAC test was inadmissible in DMV hearings if the test was not administered within two hours of the defendant's arrest and refusal warnings were not issued in the same time frame.

Vehicle and Traffic Law §1194(2)(a)(1), which was enacted in 1973, states that “the [BAC] test must be administered within two hours after such person has been placed under arrest.” The Court notes however, that this rule applies only to criminal proceedings and not to administrative hearings. Refusal hearings held by the Department of Motor Vehicles would fall under the latter category.

In making their decision, the Court reasoned that the state law requiring a license revocation of anyone who refused to submit to a BAC chemical test was originally put in place in 1953 while the “two-hour rule” did not come into effect until 1973. The court also looked at legislative intent in making their decision, reasoning that “the legislature has continually strengthened drunk driving laws over the years with a very specific design to…ease the difficulty of proving the BAC of an intoxicated driver.” Finally, they also stated that just because citizens are provided with a statutorily made safeguard for refusing a chemical BAC test on the penalty of license revocation under the “two-hour rule”, that does not bestow a substantive right to refuse the test outside the two-hour limit.

A DMV refusal hearing is a proceeding a defendant in a DWI case will face if they are alleged to have refused to take a DWI chemical test, most frequently, a breath test. A DMV refusal hearing is a parallel proceeding to the criminal matter and provides both opportunities for a criminal defendant and pitfalls in the form of further licensing sanctions if one is not prepared for this hearing. It is wholly separate and distinct from the criminal matter.

If you or someone you know has been charged with DWI, please reach out to our firm.