Breathalyzer Refusal Penalties

Question: If refusing a chemical test isn’t against the law, why does the DMV punish me for refusing a BAC DataMaster test, and what is the punishment?

Answer: The DMV will attempt to impose an array of sanctions for a driver’s failure to refuse to a chemical test. Those sanctions are all civil – not criminal – so they are imposed and run separately from the criminal prosecution you are facing in court.

This is how it goes: If you are accused of refusing to submit to a chemical test, at your arraignment (your first appearance in court), the judge will give you a Notice of Suspension and Refusal Hearing. That Notice tells you that your license is suspended for the lesser of 15 days, or until a DMV Refusal Hearing can be held. The Notice also gives you a hearing date.

If you have reason to believe that you are being accused of refusing a chemical test, and if you go to your first court appearance without an attorney, make certain that you get a copy of the Notice of Suspension and Refusal Hearing from the court. Your lawyer will want to see it, and you will need a lawyer if you hope to keep your license after the DMV hearing. (Please see the article on our website about DMV Refusal Hearings if you want to learn more about that process.) We have found that some courts regularly (accidentally) forget to give unrepresented Defendants their Notices, which results in the defendant missing their DMV Refusal Hearing, which results in the defendant losing their license. The moral of that story is: Make sure you get the Notice from the court.

If you are found to have refused a lawfully requested chemical test by the DMV Administrative Law Judge, three things will happen:

  1. There will be a revocation of your license (or non-resident operating privilege) for at least one year (for underage drivers, the revocation is the longer of one year or until the driver reaches the age of 21);
  2. A civil penalty of $500.00 will be imposed; and
  3. A Driver Responsibility Assessment Fee in the amount of $250 annually for 3 years will be imposed.

Those sanctions will be enhanced if, during the prior five year you have either: (i) had your driving privileges revoked for a chemical test refusal; or (ii) have been convicted of any subdivision of VTL § 1192. In those situations you will be subject to:

  1. A revocation of your license (or non-resident operating privilege) for at least 18 months (for underage drivers, the revocation is the longer of one year or until the driver reaches the age of 21);
  2. A civil penalty of $750.00 will be imposed; and
  3. A Driver Responsibility Assessment Fee in the amount of $250 annually for 3 years will be imposed; and
  4. You will be required to show that you underwent a drug and alcohol evaluation with successful completion of any recommended treatment before the DMV will consider issuing you a new license.

The basic sanctions are also enhanced for persons holding a CDL. If you have a CDL, refusal sanctions will include:

  1. Revocation of your CDL for at least 18 months, even if you were driving a non-commercial vehicle, or at least 3 years if you were driving a commercial vehicle with hazardous waste; and
  2. A civil penalty of $500 if you were operating a non-commercial vehicle or $550 if you were operating a commercial vehicle.

“Repeat Offenders” who hold CDL’s include drivers with a prior chemical test refusal on their record or have previously been convicted of any DWI variation under VTL § 1192, or VTL § 600(1) (Leaving the Scene of an Incident with Property Damage), or VTL § 600(2) (Leaving the Scene of an Incident with a Personal Injury), or any felony involving the use of a motor vehicle under VTL § 510-a(1)(a). If you are a repeat offender and hold a CDL, your DMV sanction for refusing a chemical test includes:

  1. Permanent disqualification from operating a commercial motor vehicle; and
  2. A $750.00 civil penalty.

If you have refused a breath test and are facing a DWI charge, contact Jeannie D. Michalski at (585) 351-2500 for a free DWI consultation. We have experience winning at DMV refusal hearings, and at winning DWI refusal trials. We can help.