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Monday, February 24, 2014

Does the arresting officer, testing officer or both need to show up to my DWI refusal hearing?

If no officers show up to the refusal hearing, the administrative law judge will postpone the case for the officers to appear.  The good news is that they will restore your driving privileges during this adjournment which typically takes 3-6 months in the NYC area. Your lawyer has the option of preparing a subpoena to insure the officer's appearance for the next hearing date.

Unlike traffic tickets, the case is not dismissed if the officer does not appear the next court date.  I have conducted many refusal hearings in the NYC area where none of the police officers appeared and the hearing takes place without any live police witnesses. If one officer shows, they will be allowed to testify as to what their fellow officers told them or what they observed them do.  The reason this is allowed is because hearsay is allowed at a refusal hearing.  There are also cases that allow for the introduction of police reports that ordinarily would not be allowed at trial. The burden for the State is the same as if the officers were present, so it is essential that your attorney knows what elements need to be established by the State because if any one of them is missing, the judge must rule in your favor.  The decision on whether to subpoena the officer to testify is a difficult one as there are many advantages to having an officer testify prior to the criminal trial.  Most likely he has yet to be prepped for cross-examination and has briefly read over his paperwork.  This gives a huge advantage to a skilled trial lawyer and his testimony at the hearing can be used against the officer at trial.  These advantages must be weighed against the improved odds of winning the refusal hearing based on lack of evidence.  That is why it is imperative to hire an attorney with the experience and track record to navigate these difficult decisions.

"Remember one reasonable doubt can make all the difference"

#dwi, #dui, #dwirefusal, #duirefusal, #refusalhearing,  #criminallaw,  #criminaldefense, #NYC

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