Refusal to Submit to a Chemical Test (VTL 1194(2)(b)) – NY Traffic Ticket & DWI Defense Lawyer
The Benjamin Goldman Law Office represents motorists facing VTL § 1194(2)(b) allegations—refusing a post-arrest chemical test of breath, blood, urine, or saliva. A refusal triggers an immediate suspension at arraignment and a separate DMV refusal hearing that can result in license revocation and civil penalties even if the criminal DWI is reduced or dismissed. Our firm handles refusal cases across New York State.
VTL § 1194(2)(b) — What Is a “Refusal”?
Under New York’s implied consent law, a driver is deemed to have consented to chemical testing after arrest. When an officer properly warns that refusal will cause immediate suspension and later revocation, and the motorist declines or fails to complete the test, the officer files a Report of Refusal. The court suspends the license at arraignment, and DMV schedules a hearing to decide four issues.
- Reasonable grounds to believe a §1192 offense (or §1192-a for under 21)
- Lawful arrest (or proper detention for §1192-a)
- Clear warning of suspension and revocation consequences
- Actual refusal (or failure to submit/complete)
How § 1194(2)(b) Chemical Test Refusal Differs from § 1194(1)(b) Breath Screening (PBT) Refusal
Although both laws involve saying “no” to a breath-related request, they apply at different stages and carry very different consequences. Use this side-by-side to understand the distinction:
| Topic | § 1194(1)(b) — Breath Screening (PBT) Refusal | § 1194(2)(b) — Chemical Test Refusal |
|---|---|---|
| When it happens | Roadside, pre-arrest screening at the scene (field testing). | Post-arrest (or after a positive PBT within 2 hours) at station/hospital per implied consent. |
| What’s being refused | A preliminary breath test (handheld PBT) requested by an officer in the field. | A formal chemical test of breath, blood, urine, or saliva requested by police. |
| Immediate license action | No automatic court suspension just for refusing the PBT. | Immediate suspension at arraignment based on officer’s sworn Report of Refusal. |
| Hearing | Handled as a traffic infraction in court; no separate DMV refusal hearing. | Separate DMV refusal hearing on four issues: reasonable grounds, lawful arrest, proper warnings, actual refusal. |
| Penalties | Typically minor traffic-infraction level; no mandatory revocation or civil penalty by statute. | Admin revocation (≥1 year; ≥18 months with prior within 5 yrs) + civil penalty ($500 first, $750 repeat). CDL can face 18 months/3 years or permanent disqualification. |
| Hardship license | N/A (no automatic suspension from the PBT refusal itself). | Not available during the refusal-based suspension. |
| Evidentiary use | Refusal can be used to support probable cause and the DWI case narrative. | Refusal evidence admissible if clear warnings were given and refusal persisted (§ 1194(2)(f)). |
| Under-21 handling | Can inform reasonable grounds for Zero Tolerance, but no §1194-(2)-style DMV refusal sanctions. | Under §1194(2) and §1194-a, revocation is at least 1 year (or until age 21 if longer), with applicable civil penalties. |
| Court-ordered testing | Not applicable. | If there’s death/serious injury and other criteria, police/DA can seek a court order for a compulsory chemical test (§ 1194(3)). |
Bottom line: refusing the roadside PBT (§ 1194(1)(b)) is a lower-level issue that may still aid the prosecution’s case, but refusing the post-arrest chemical test (§ 1194(2)(b)) triggers immediate suspension, a high-stakes DMV hearing, license revocation, and civil penalties—even if the criminal DWI is later reduced or dismissed.
Penalties If DMV Sustains the Refusal
- Revocation: At least 1 year (first refusal); 18 months with a prior DWI/refusal within 5 years. CDL revocation is at least 18 months (or 3 years with hazmat), with permanent disqualification possible for certain priors.
- Civil Penalty: $500 (first); $750 (repeat within 5 years). CDL context commonly $550/$750 depending on priors.
- No hardship license during the criminal case when the suspension is for refusal.
- Rehab program does not erase revocation arising from refusal.
How We Defend a § 1194(2)(b) Refusal
At the DMV hearing, we focus on the statute’s four issues. Common defenses include: insufficient “reasonable grounds,” unlawful stop/arrest, defective warnings (not clear or unequivocal), and disputes over whether there was an actual refusal (e.g., confusion, medical inability, equipment or officer error). A successful challenge avoids revocation and penalties.
Statute
Read the full statute on the NY Senate site: VTL § 1194. Key refusal provisions include §1194(2)(b) (Report of Refusal), §1194(2)(c) (DMV hearing issues), §1194(2)(d) (sanctions), and §1194(2)(f) (admissibility of refusal).
CALL NOW§ 1194(2)(b) — Report of Refusal (excerpt):
If, after proper warnings, a person refuses a chemical test, the test shall not be given (absent a court order) and the officer shall immediately make a written report of such refusal. Upon arraignment, the court shall temporarily suspend the license pending a DMV hearing. The DMV hearing determines whether (1) reasonable grounds existed, (2) the arrest was lawful, (3) warnings were clear and unequivocal, and (4) the person refused the test. If all are found in the affirmative, DMV shall revoke the license and assess the applicable civil penalty.
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