NEW YORK DWI REFUSAL LAWS

§ 1194. Arrest and testing. 1. Arrest and field testing. (a) Arrest.
Notwithstanding the provisions of section 140.10 of the criminal
procedure law, a police officer may, without a warrant, arrest a person,
in case of a violation of subdivision one of section eleven hundred
ninety-two of this article, if such violation is coupled with an
accident or collision in which such person is involved, which in fact
has been committed, though not in the police officer's presence, when
the officer has reasonable cause to believe that the violation was
committed by such person.
(b) Field testing. Every person operating a motor vehicle which has
been involved in an accident or which is operated in violation of any of
the provisions of this chapter shall, at the request of a police
officer, submit to a breath test to be administered by the police
officer. If such test indicates that such operator has consumed alcohol,
the police officer may request such operator to submit to a chemical
test in the manner set forth in subdivision two of this section.
2. Chemical tests. (a) When authorized. Any person who operates a
motor vehicle in this state shall be deemed to have given consent to a
chemical test of one or more of the following: breath, blood, urine, or
saliva, for the purpose of determining the alcoholic and/or drug content
of the blood provided that such test is administered by or at the
direction of a police officer with respect to a chemical test of breath,
urine or saliva or, with respect to a chemical test of blood, at the
direction of a police officer:
(1) having reasonable grounds to believe such person to have been
operating in violation of any subdivision of section eleven hundred
ninety-two of this article and within two hours after such person has
been placed under arrest for any such violation; or having reasonable
grounds to believe such person to have been operating in violation of
section eleven hundred ninety-two-a of this article and within two hours
after the stop of such person for any such violation,
(2) within two hours after a breath test, as provided in paragraph (b)
of subdivision one of this section, indicates that alcohol has been
consumed by such person and in accordance with the rules and regulations
established by the police force of which the officer is a member;
(3) for the purposes of this paragraph, "reasonable grounds" to
believe that a person has been operating a motor vehicle after having
consumed alcohol in violation of section eleven hundred ninety-two-a of
this article shall be determined by viewing the totality of
circumstances surrounding the incident which, when taken together,
indicate that the operator was driving in violation of such subdivision.
Such circumstances may include any visible or behavioral indication of
alcohol consumption by the operator, the existence of an open container
containing or having contained an alcoholic beverage in or around the
vehicle driven by the operator, or any other evidence surrounding the
circumstances of the incident which indicates that the operator has been
operating a motor vehicle after having consumed alcohol at the time of
the incident; or
(4) notwithstanding any other provision of law to the contrary, no
person under the age of twenty-one shall be arrested for an alleged
violation of section eleven hundred ninety-two-a of this article.
However, a person under the age of twenty-one for whom a chemical test
is authorized pursuant to this paragraph may be temporarily detained by
the police solely for the purpose of requesting or administering such
chemical test whenever arrest without a warrant for a petty offense
would be authorized in accordance with the provisions of section 140.10
of the criminal procedure law or paragraph (a) of subdivision one of
this section.
(b) Report of refusal. (1) If: (A) such person having been placed
under arrest; or (B) after a breath test indicates the presence of
alcohol in the person's system; or (C) with regard to a person under the
age of twenty-one, there are reasonable grounds to believe that such
person has been operating a motor vehicle after having consumed alcohol
in violation of section eleven hundred ninety-two-a of this article; and
having thereafter been requested to submit to such chemical test and
having been informed that the person's license or permit to drive and
any non-resident operating privilege shall be immediately suspended and
subsequently revoked, or, for operators under the age of twenty-one for
whom there are reasonable grounds to believe that such operator has been
operating a motor vehicle after having consumed alcohol in violation of
section eleven hundred ninety-two-a of this article, shall be revoked
for refusal to submit to such chemical test or any portion thereof,
whether or not the person is found guilty of the charge for which such
person is arrested or detained, refuses to submit to such chemical test
or any portion thereof, unless a court order has been granted pursuant
to subdivision three of this section, the test shall not be given and a
written report of such refusal shall be immediately made by the police
officer before whom such refusal was made. Such report may be verified
by having the report sworn to, or by affixing to such report a form
notice that false statements made therein are punishable as a class A
misdemeanor pursuant to section 210.45 of the penal law and such form
notice together with the subscription of the deponent shall constitute a
verification of the report.
(2) The report of the police officer shall set forth reasonable
grounds to believe such arrested person or such detained person under
the age of twenty-one had been driving in violation of any subdivision
of section eleven hundred ninety-two or eleven hundred ninety-two-a of
this article, that said person had refused to submit to such chemical
test, and that no chemical test was administered pursuant to the
requirements of subdivision three of this section. The report shall be
presented to the court upon arraignment of an arrested person, provided,
however, in the case of a person under the age of twenty-one, for whom a
test was authorized pursuant to the provisions of subparagraph two or
three of paragraph (a) of this subdivision, and who has not been placed
under arrest for a violation of any of the provisions of section eleven
hundred ninety-two of this article, such report shall be forwarded to
the commissioner within forty-eight hours in a manner to be prescribed
by the commissioner, and all subsequent proceedings with regard to
refusal to submit to such chemical test by such person shall be as set
forth in subdivision three of section eleven hundred ninety-four-a of
this article.
(3) For persons placed under arrest for a violation of any subdivision
of section eleven hundred ninety-two of this article, the license or
permit to drive and any non-resident operating privilege shall, upon the
basis of such written report, be temporarily suspended by the court
without notice pending the determination of a hearing as provided in
paragraph (c) of this subdivision. Copies of such report must be
transmitted by the court to the commissioner and such transmittal may
not be waived even with the consent of all the parties. Such report
shall be forwarded to the commissioner within forty-eight hours of such
arraignment.
(4) The court or the police officer, in the case of a person under the
age of twenty-one alleged to be driving after having consumed alcohol,
shall provide such person with a scheduled hearing date, a waiver form,
and such other information as may be required by the commissioner. If a
hearing, as provided for in paragraph (c) of this subdivision, or
subdivision three of section eleven hundred ninety-four-a of this
article, is waived by such person, the commissioner shall immediately
revoke the license, permit, or non-resident operating privilege, as of
the date of receipt of such waiver in accordance with the provisions of
paragraph (d) of this subdivision.
(c) Hearings. Any person whose license or permit to drive or any
non-resident driving privilege has been suspended pursuant to paragraph
(b) of this subdivision is entitled to a hearing in accordance with a
hearing schedule to be promulgated by the commissioner. If the
department fails to provide for such hearing fifteen days after the date
of the arraignment of the arrested person, the license, permit to drive
or non-resident operating privilege of such person shall be reinstated
pending a hearing pursuant to this section. The hearing shall be limited
to the following issues: (1) did the police officer have reasonable
grounds to believe that such person had been driving in violation of any
subdivision of section eleven hundred ninety-two of this article; (2)
did the police officer make a lawful arrest of such person; (3) was such
person given sufficient warning, in clear or unequivocal language, prior
to such refusal that such refusal to submit to such chemical test or any
portion thereof, would result in the immediate suspension and subsequent
revocation of such person's license or operating privilege whether or
not such person is found guilty of the charge for which the arrest was
made; and (4) did such person refuse to submit to such chemical test or
any portion thereof. If, after such hearing, the hearing officer, acting
on behalf of the commissioner, finds on any one of said issues in the
negative, the hearing officer shall immediately terminate any suspension
arising from such refusal. If, after such hearing, the hearing officer,
acting on behalf of the commissioner finds all of the issues in the
affirmative, such officer shall immediately revoke the license or permit
to drive or any non-resident operating privilege in accordance with the
provisions of paragraph (d) of this subdivision. A person who has had a
license or permit to drive or non-resident operating privilege suspended
or revoked pursuant to this subdivision may appeal the findings of the
hearing officer in accordance with the provisions of article three-A of
this chapter. Any person may waive the right to a hearing under this
section. Failure by such person to appear for the scheduled hearing
shall constitute a waiver of such hearing, provided, however, that such
person may petition the commissioner for a new hearing which shall be
held as soon as practicable.
(d) Sanctions. (1) Revocations. a. Any license which has been revoked
pursuant to paragraph (c) of this subdivision shall not be restored for
at least one year after such revocation, nor thereafter, except in the
discretion of the commissioner. However, no such license shall be
restored for at least eighteen months after such revocation, nor
thereafter except in the discretion of the commissioner, in any case
where the person has had a prior revocation resulting from refusal to
submit to a chemical test, or has been convicted of or found to be in
violation of any subdivision of section eleven hundred ninety-two or
section eleven hundred ninety-two-a of this article not arising out of
the same incident, within the five years immediately preceding the date
of such revocation; provided, however, a prior finding that a person
under the age of twenty-one has refused to submit to a chemical test
pursuant to subdivision three of section eleven hundred ninety-four-a of
this article shall have the same effect as a prior finding of a refusal
pursuant to this subdivision solely for the purpose of determining the
length of any license suspension or revocation required to be imposed
under any provision of this article, provided that the subsequent
offense or refusal is committed or occurred prior to the expiration of
the retention period for such prior refusal as set forth in paragraph
(k) of subdivision one of section two hundred one of this chapter.
b. Any license which has been revoked pursuant to paragraph (c) of
this subdivision or pursuant to subdivision three of section eleven
hundred ninety-four-a of this article, where the holder was under the
age of twenty-one years at the time of such refusal, shall not be
restored for at least one year, nor thereafter, except in the discretion
of the commissioner. Where such person under the age of twenty-one years
has a prior finding, conviction or youthful offender adjudication
resulting from a violation of section eleven hundred ninety-two or
section eleven hundred ninety-two-a of this article, not arising from
the same incident, such license shall not be restored for at least one
year or until such person reaches the age of twenty-one years, whichever
is the greater period of time, nor thereafter, except in the discretion
of the commissioner.
c. Any commercial driver's license which has been revoked pursuant to
paragraph (c) of this subdivision based upon a finding of refusal to
submit to a chemical test, where such finding occurs within or outside
of this state, shall not be restored for at least eighteen months after
such revocation, nor thereafter, except in the discretion of the
commissioner, but shall not be restored for at least three years after
such revocation, nor thereafter, except in the discretion of the
commissioner, if the holder of such license was operating a commercial
motor vehicle transporting hazardous materials at the time of such
refusal. However, such person shall be permanently disqualified from
operating a commercial motor vehicle in any case where the holder has a
prior finding of refusal to submit to a chemical test pursuant to this
section or has a prior conviction of any of the following offenses: any
violation of section eleven hundred ninety-two of this article; any
violation of subdivision one or two of section six hundred of this
chapter; or has a prior conviction of any felony involving the use of a
motor vehicle pursuant to paragraph (a) of subdivision one of section
five hundred ten-a of this chapter. Provided that the commissioner may
waive such permanent revocation after a period of ten years has expired
from such revocation provided:
(i) that during such ten year period such person has not been found to
have refused a chemical test pursuant to this section and has not been
convicted of any one of the following offenses: any violation of section
eleven hundred ninety-two of this article; refusal to submit to a
chemical test pursuant to this section; any violation of subdivision one
or two of section six hundred of this chapter; or has a prior conviction
of any felony involving the use of a motor vehicle pursuant to paragraph
(a) of subdivision one of section five hundred ten-a of this chapter;
(ii) that such person provides acceptable documentation to the
commissioner that such person is not in need of alcohol or drug
treatment or has satisfactorily completed a prescribed course of such
treatment; and
(iii) after such documentation is accepted, that such person is
granted a certificate of relief from disabilities or a certificate of
good conduct pursuant to article twenty-three of the correction law by
the court in which such person was last penalized.
d. Upon a third finding of refusal and/or conviction of any of the
offenses which require a permanent commercial driver's license
revocation, such permanent revocation may not be waived by the
commissioner under any circumstances.
(2) Civil penalties. Except as otherwise provided, any person whose
license, permit to drive, or any non-resident operating privilege is
revoked pursuant to the provisions of this section shall also be liable
for a civil penalty in the amount of five hundred dollars except that if
such revocation is a second or subsequent revocation pursuant to this
section issued within a five year period, or such person has been
convicted of a violation of any subdivision of section eleven hundred
ninety-two of this article within the past five years not arising out of
the same incident, the civil penalty shall be in the amount of seven
hundred fifty dollars. Any person whose license is revoked pursuant to
the provisions of this section based upon a finding of refusal to submit
to a chemical test while operating a commercial motor vehicle shall also
be liable for a civil penalty of five hundred fifty dollars except that
if such person has previously been found to have refused a chemical test
pursuant to this section while operating a commercial motor vehicle or
has a prior conviction of any of the following offenses while operating
a commercial motor vehicle: any violation of section eleven hundred
ninety-two of this article; any violation of subdivision two of section
six hundred of this chapter; or has a prior conviction of any felony
involving the use of a commercial motor vehicle pursuant to paragraph
(a) of subdivision one of section five hundred ten-a of this chapter,
then the civil penalty shall be seven hundred fifty dollars. No new
driver's license or permit shall be issued, or non-resident operating
privilege restored to such person unless such penalty has been paid. All
penalties collected by the department pursuant to the provisions of this
section shall be the property of the state and shall be paid into the
general fund of the state treasury.
(3) Effect of rehabilitation program. No period of revocation arising
out of this section may be set aside by the commissioner for the reason
that such person was a participant in the alcohol and drug
rehabilitation program set forth in section eleven hundred ninety-six of
this article.
(e) Regulations. The commissioner shall promulgate such rules and
regulations as may be necessary to effectuate the provisions of
subdivisions one and two of this section.
(f) Evidence. Evidence of a refusal to submit to such chemical test or
any portion thereof shall be admissible in any trial, proceeding or
hearing based upon a violation of the provisions of section eleven
hundred ninety-two of this article but only upon a showing that the
person was given sufficient warning, in clear and unequivocal language,
of the effect of such refusal and that the person persisted in the
refusal.
(g) Results. Upon the request of the person who was tested, the
results of such test shall be made available to such person.
3. Compulsory chemical tests. (a) Court ordered chemical tests.
Notwithstanding the provisions of subdivision two of this section, no
person who operates a motor vehicle in this state may refuse to submit
to a chemical test of one or more of the following: breath, blood, urine
or saliva, for the purpose of determining the alcoholic and/or drug
content of the blood when a court order for such chemical test has been
issued in accordance with the provisions of this subdivision.
(b) When authorized. Upon refusal by any person to submit to a
chemical test or any portion thereof as described above, the test shall
not be given unless a police officer or a district attorney, as defined
in subdivision thirty-two of section 1.20 of the criminal procedure law,
requests and obtains a court order to compel a person to submit to a
chemical test to determine the alcoholic or drug content of the person's
blood upon a finding of reasonable cause to believe that:
(1) such person was the operator of a motor vehicle and in the course
of such operation a person other than the operator was killed or
suffered serious physical injury as defined in section 10.00 of the
penal law; and
(2) a. either such person operated the vehicle in violation of any
subdivision of section eleven hundred ninety-two of this article, or
b. a breath test administered by a police officer in accordance with
paragraph (b) of subdivision one of this section indicates that alcohol
has been consumed by such person; and
(3) such person has been placed under lawful arrest; and
(4) such person has refused to submit to a chemical test or any
portion thereof, requested in accordance with the provisions of
paragraph (a) of subdivision two of this section or is unable to give
consent to such a test.
(c) Reasonable cause; definition. For the purpose of this subdivision
"reasonable cause" shall be determined by viewing the totality of
circumstances surrounding the incident which, when taken together,
indicate that the operator was driving in violation of section eleven
hundred ninety-two of this article. Such circumstances may include, but
are not limited to: evidence that the operator was operating a motor
vehicle in violation of any provision of this article or any other
moving violation at the time of the incident; any visible indication of
alcohol or drug consumption or impairment by the operator; the existence
of an open container containing an alcoholic beverage in or around the
vehicle driven by the operator; any other evidence surrounding the
circumstances of the incident which indicates that the operator has been
operating a motor vehicle while impaired by the consumption of alcohol
or drugs or intoxicated at the time of the incident.
(d) Court order; procedure. (1) An application for a court order to
compel submission to a chemical test or any portion thereof, may be made
to any supreme court justice, county court judge or district court judge
in the judicial district in which the incident occurred, or if the
incident occurred in the city of New York before any supreme court
justice or judge of the criminal court of the city of New York. Such
application may be communicated by telephone, radio or other means of
electronic communication, or in person.
(2) The applicant must provide identification by name and title and
must state the purpose of the communication. Upon being advised that an
application for a court order to compel submission to a chemical test is
being made, the court shall place under oath the applicant and any other
person providing information in support of the application as provided
in subparagraph three of this paragraph. After being sworn the applicant
must state that the person from whom the chemical test was requested was
the operator of a motor vehicle and in the course of such operation a
person, other than the operator, has been killed or seriously injured
and, based upon the totality of circumstances, there is reasonable cause
to believe that such person was operating a motor vehicle in violation
of any subdivision of section eleven hundred ninety-two of this article
and, after being placed under lawful arrest such person refused to
submit to a chemical test or any portion thereof, in accordance with the
provisions of this section or is unable to give consent to such a test
or any portion thereof. The applicant must make specific allegations of
fact to support such statement. Any other person properly identified,
may present sworn allegations of fact in support of the applicant's
statement.
(3) Upon being advised that an oral application for a court order to
compel a person to submit to a chemical test is being made, a judge or
justice shall place under oath the applicant and any other person
providing information in support of the application. Such oath or oaths
and all of the remaining communication must be recorded, either by means
of a voice recording device or verbatim stenographic or verbatim
longhand notes. If a voice recording device is used or a stenographic
record made, the judge must have the record transcribed, certify to the
accuracy of the transcription and file the original record and
transcription with the court within seventy-two hours of the issuance of
the court order. If the longhand notes are taken, the judge shall
subscribe a copy and file it with the court within twenty-four hours of
the issuance of the order.
(4) If the court is satisfied that the requirements for the issuance
of a court order pursuant to the provisions of paragraph (b) of this
subdivision have been met, it may grant the application and issue an
order requiring the accused to submit to a chemical test to determine
the alcoholic and/or drug content of his blood and ordering the
withdrawal of a blood sample in accordance with the provisions of
paragraph (a) of subdivision four of this section. When a judge or
justice determines to issue an order to compel submission to a chemical
test based on an oral application, the applicant therefor shall prepare
the order in accordance with the instructions of the judge or justice.
In all cases the order shall include the name of the issuing judge or
justice, the name of the applicant, and the date and time it was issued.
It must be signed by the judge or justice if issued in person, or by the
applicant if issued orally.
(5) Any false statement by an applicant or any other person in support
of an application for a court order shall subject such person to the
offenses for perjury set forth in article two hundred ten of the penal
law.
(6) The chief administrator of the courts shall establish a schedule
to provide that a sufficient number of judges or justices will be
available in each judicial district to hear oral applications for court
orders as permitted by this section.
(e) Administration of compulsory chemical test. An order issued
pursuant to the provisions of this subdivision shall require that a
chemical test to determine the alcoholic and/or drug content of the
operator's blood must be administered. The provisions of paragraphs (a),
(b) and (c) of subdivision four of this section shall be applicable to
any chemical test administered pursuant to this section.
4. Testing procedures. (a) Persons authorized to withdraw blood;
immunity; testimony. (1) At the request of a police officer, the
following persons may withdraw blood for the purpose of determining the
alcoholic or drug content therein: (i) a physician, a registered
professional nurse, a registered physician assistant, a certified nurse
practitioner, or an advanced emergency medical technician as certified
by the department of health; or (ii) under the supervision and at the
direction of a physician, registered physician assistant or certified
nurse practitioner acting within his or her lawful scope of practice, or
upon the express consent of the person eighteen years of age or older
from whom such blood is to be withdrawn: a clinical laboratory
technician or clinical laboratory technologist licensed pursuant to
article one hundred sixty-five of the education law; a phlebotomist; or
a medical laboratory technician or medical technologist employed by a
clinical laboratory approved under title five of article five of the
public health law. This limitation shall not apply to the taking of a
urine, saliva or breath specimen.
(2) No person entitled to withdraw blood pursuant to subparagraph one
of this paragraph or hospital employing such person, and no other
employer of such person shall be sued or held liable for any act done or
omitted in the course of withdrawing blood at the request of a police
officer pursuant to this section.
(3) Any person who may have a cause of action arising from the
withdrawal of blood as aforesaid, for which no personal liability exists
under subparagraph two of this paragraph, may maintain such action
against the state if any person entitled to withdraw blood pursuant to
paragraph (a) hereof acted at the request of a police officer employed
by the state, or against the appropriate political subdivision of the
state if such person acted at the request of a police officer employed
by a political subdivision of the state. No action shall be maintained
pursuant to this subparagraph unless notice of claim is duly filed or
served in compliance with law.
(4) Notwithstanding the foregoing provisions of this paragraph an
action may be maintained by the state or a political subdivision thereof
against a person entitled to withdraw blood pursuant to subparagraph one
of this paragraph or hospital employing such person for whose act or
omission the state or the political subdivision has been held liable
under this paragraph to recover damages, not exceeding the amount
awarded to the claimant, that may have been sustained by the state or
the political subdivision by reason of gross negligence or bad faith on
the part of such person.
(5) The testimony of any person other than a physician, entitled to
withdraw blood pursuant to subparagraph one of this paragraph, in
respect to any such withdrawal of blood made by such person may be
received in evidence with the same weight, force and effect as if such
withdrawal of blood were made by a physician.
(6) The provisions of subparagraphs two, three and four of this
paragraph shall also apply with regard to any person employed by a
hospital as security personnel for any act done or omitted in the course
of withdrawing blood at the request of a police officer pursuant to a
court order in accordance with subdivision three of this section.
(b) Right to additional test. The person tested shall be permitted to
choose a physician to administer a chemical test in addition to the one
administered at the direction of the police officer.
(c) Rules and regulations. The department of health shall issue and
file rules and regulations approving satisfactory techniques or methods
of conducting chemical analyses of a person's blood, urine, breath or
saliva and to ascertain the qualifications and competence of individuals
to conduct and supervise chemical analyses of a person's blood, urine,
breath or saliva. If the analyses were made by an individual possessing
a permit issued by the department of health, this shall be presumptive
evidence that the examination was properly given. The provisions of this
paragraph do not prohibit the introduction as evidence of an analysis
made by an individual other than a person possessing a permit issued by
the department of health.