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Chemical Test Refusal Policy Change

White Plains Lawyer for DWI Charges After Chemical Test Refusal

If you register and receive a driver’s license in New York, you give implied consent to undergoing a chemical test in the event that you’re arrested for driving while intoxicated (DWI). The district attorney for Westchester County in New York has reversed the prior administration’s policy on chemical test refusals in DWI cases. It has returned to the policy that existed before December 2014, which allows for plea deals even when there has been a chemical test refusal. If you are interested in how the changed policy on chemical test reversal might apply to you, call the seasoned White Plains DWI lawyer Mark A. Siesel. He has decades of experience fighting for the rights of ordinary people.

Chemical Tests in DWI Cases in Upstate New York

The purpose of chemical tests is to assess your blood alcohol content (BAC). These tests are administered if you were arrested because an officer believes there is probable cause that you were driving under the influence of alcohol or drugs. As with other criminal charges, a DWI charge needs to be proven beyond a reasonable doubt. A negative chemical test result may be used as evidence to support a prosecutor’s case against you in court; it can be the basis for a conviction and harsh sentence. You may be tempted to refuse the chemical test altogether in hopes that the prosecutor will not be able to establish the case against you without the test.

Chemical Test Refusal Policy Change in White Plains and Westchester County

Before 2014, the District Attorney’s office would sometimes negotiate a plea deal when an operator refused a chemical test of his or her saliva, breath, blood, or urine. However, for about six years, the policy shifted and there would be no negotiation when a driver had refused a chemical test. This would mean you would either have to plead “as charged” or proceed to trial to avoid a criminal record.

However, due to a 2020 policy shift, there is now a pathway to getting your DWI reduced to a driving while ability impaired (DWAI) charge. DWAI is a violation rather than a criminal charge. You may be able to take this path by performing at least 30 hours of community service, attending the one session of the MADD Victim’s Impact Panel that is required regardless, and attending a 7 week drinking driver program (DDP) course. As with any other DWI charge, you’ll need to pay the requisite fines and remain in good standing through a conditional period.

Under this policy, factors that may merit a refusal include an extremely high BAC (above a .17), a prior or more than one prior DWI, and an accident involving property damage and or personal injury or death of another person.

Chemical Test Refusal Hearing at the DMV

In addition to facing DWI charges after an arrest, you will be asked to go to a refusal hearing. Generally, refusal hearings are held within 10 days of an arrest for DWI, and it can be important to seek legal representation from an experienced attorney who can use the hearing to determine the strengths and weaknesses of the case against you. At the hearing you’ll be able to testify about the circumstances of your refusal. It can be important to prepare for this with counsel.

DWI Defenses

You should not assume a conviction is assured in your DWI case. There are situations in which it’s possible to mount a strategic defense by attacking the constitutionality of various steps that led to your arrest. For example, if you were pulled over by an officer who did not have a reasonable suspicion that you were driving while intoxicated, our lawyers may be able to get the evidence obtained from the stop suppressed through a motion to suppress. Similarly, if we are able to show that you were arrested without probable cause, we may be able to get the chemical test results suppressed.

Consult a Seasoned Chemical Test Refusal Lawyer

If you or a loved one was charged with a DWI or other alcohol-related crime you should call knowledgeable, diligent, and seasoned White Plains DWI attorney Mark A. Siesel. Mr. Siesel has more than 30 years of experience representing clients in Westchester, Putnam, Dutchess, Sullivan, Rockland, Orange, and Ulster Counties. Please contact us at (914) 428-7386 or complete our online form for dedicated legal representation.

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Mark Siesel made taking care of my traffic case easy, and delivered with results. Mark was professional, prompt with return calls or emails, and very efficient. He followed up on the day of my case, and took care of everything as promised. I would recommend Mark highly to my friends or colleagues in...


Recently, I had a legal situation that required the assistance from an attorney. Well, not living in the State of New York I had to do some research regarding qualified attorneys in New York. I found Mark Siesel. I'm happy to write that Mr. Siesel came through with "flying colors." Mark made sure my...


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