Appellate court rules that DWI “two hour rule” does not apply to DMV refusal hearings

Tom McDougall, Law Clerk • March 28, 2022

In a decision recently handed down by the New York State Court of Appeals, Matter of Pedro, 2022 N.Y. Slip Op. 00959, the Court has held that a defendant’s refusal to take a chemical test to determine their blood alcohol content (BAC) is admissible as evidence in a Department of Motor Vehicles (DMV) refusal hearing, regardless of whether that refusal fell under the “two-hour rule” as applicable for driving while intoxicated (DWI) cases. Prior to the decision, some Administrative Law Judges had held that evidence of a defendant’s refusal to submit to a BAC test was inadmissible in DMV hearings if the test was not administered within two hours of the defendant's arrest and refusal warnings were not issued in the same time frame.


Vehicle and Traffic Law §1194(2)(a)(1), which was enacted in 1973, states that “the [BAC] test must be administered within two hours after such person has been placed under arrest.” The Court notes however, that this rule applies only to criminal proceedings and not to administrative hearings. Refusal hearings held by the Department of Motor Vehicles would fall under the latter category.


In making their decision, the Court reasoned that the state law requiring a license revocation of anyone who refused to submit to a BAC chemical test was originally put in place in 1953 while the “two-hour rule” did not come into effect until 1973. The court also looked at legislative intent in making their decision, reasoning that “the legislature has continually strengthened drunk driving laws over the years with a very specific design to…ease the difficulty of proving the BAC of an intoxicated driver.” Finally, they also stated that just because citizens are provided with a statutorily made safeguard for refusing a chemical BAC test on the penalty of license revocation under the “two-hour rule”, that does not bestow a substantive right to refuse the test outside the two-hour limit.


A DMV refusal hearing is a proceeding a defendant in a DWI case will face if they are alleged to have refused to take a DWI chemical test, most frequently, a breath test. A DMV refusal hearing is a parallel proceeding to the criminal matter and provides both opportunities for a criminal defendant and pitfalls in the form of further licensing sanctions if one is not prepared for this hearing. It is wholly separate and distinct from the criminal matter.


If you or someone you know has been charged with DWI, please reach out to our firm.

Flag waving with the sky in the background and sun set. Text states
By Flink Maswick Law PLLC September 11, 2026
A post from Flink Maswick Law in remembrance of 9/11, 25 years later.
Attorneys Ed Flink and Elliot Vanier sitting at a table reviewing documents.
By Flink Maswick Law September 10, 2026
Attorneys Ed Flink and Elliot Vanier secured a $110,000 settlement for a Capital District client injured as a passenger in a two-car crash.
American Flag waving with text Happy Labor Day and stars.
By Flink Maswick Law PLLC September 5, 2026
Happy Labor Day Post from Flink Maswick Law with offices in Lake Placid NY, Tupper Lake NY, and Albany NY.
Flink Maswick Law PLLC attorneys, staff, and families at The Wild Center in Tupper Lake.
By Flink Maswick Law PLLC August 19, 2026
Flink Maswick Law PLLC attorneys, staff, and families enjoyed a summer fun day visiting The Wild Center and its famous trolls in Tupper Lake, NY.
Flink Maswick Law PLLC  attorneys and staff at Mirror Lake in Lake Placid NY
August 12, 2026
Flink Maswick Law PLLC in Lake Placid and Tupper Lake, will close at 11:30 a.m. on Friday, August 14, 2026, for a firm summer fun day and will reopen Monday, August 17 at 8:30 a.m.
Molly Hann, Jill Reynolds (3rd Yar law student), and James Maswick
By Flink Maswick Law July 17, 2026
The attorneys of Flink Maswick Law PLLC were pleased to host Jill Reynolds, a rising third-year law student at Vermont Law School, this past week. Jill had the opportunity to attend both criminal and civil-based proceedings in a variety of courts, conduct legal research to support Flink Maswick attorneys in some litigated matters, attend client meetings, and sit in and participate on strategy phone calls with clients as well. Jill spent the majority of time with both attorneys Molly S. Hann and James L. Maswick this past week and also met with attorney Edward B. Flink. We greatly enjoyed having Jill and wish them an excellent upcoming third year at Vermont Law! Flink Maswick Law participated in the Supreme Court, Appellate Division, Third Judicial Department's Rural Pathways Program, which is designed to place law students in rural counties during the summer break from school. The program allows students to observe rural law practice, as well as gain hands-on experience in different areas of law in rural settings. One of the goals of the program is to educate law students about opportunities for law students in legal practice in less populated areas.
James Maswick Attorney and Partner at Flink Maswick Law
By Flink Maswick Law PLLC July 14, 2026
James L. Maswick, an attorney with Flink Maswick Law PLLC, recently was victorious in a New York State Department of Motor Vehicles Refusal Hearing on behalf of a client. Refusal Hearings typically occur when a motorist is arrested and alleged to have been operating their motor vehicle under the influence of alcohol or drugs, and allegedly refuses to provide a chemical test to the police upon proper request. This chemical test can take the form of a breath test, urine test, blood test, and/or a saliva test. In this situation, the client was alleged to have been operating a motor vehicle in an intoxicated condition and allegedly failed to provide a chemical test upon request of the arresting officers. However, Maswick and the client were successful, after three separate refusal hearing sessions, in eliciting testimony on cross-examination from one of the arresting officers, which indicated that the allegations made in the notifications filed with the Department of Motor Vehicles were inaccurate and impossible in light of the arresting officer's own testimony. Upon the start of the third DMV Refusal Hearing session on this matter, the Administrative Law Judge dismissed the case on the motion Mr. Maswick and his client made seeking dismissal of the matter, granting their motion.  If you find yourself in a similar situation, please do not hesitate to contact our firm at (518) 523-2441.
By Flink Maswick Law PLLC July 9, 2026
Flink Maswick Law PLLC is pleased to announce that it was voted runner up by the readers of the Adirondack Daily Enterprise and Lake Placid News in their annual “Best of the Adirondacks” competition for 2026 in the Best Law Firm category. Additionally, Flink Maswick Law PLLC attorney Molly S. Hann, Esq. was voted second place in the Best Attorney/Lawyer competition, after winning the previous 2 years. James L. Maswick, Esq. of Flink Maswick Law PLLC was voted third place in the same category this year. Fellow bar member, colleague and attorney Robert White, Esq. of Saranac Lake and his law firm won Best Attorney/Lawyer and the Best Law Firm categories. Congrats to our friend Bob for his fine work and wins! We wish to thank the readers of the Adirondack Daily Enterprise and Lake Placid News for their continued support and trust. We also congratulate the other award winners and nominees in the annual contest.
Happy 4th of July with fireworks, U.S. flag, and “Celebrating 250 Years of America’s Independence” text
By Flink Maswick Law July 3, 2026
From all of us at Flink Maswick Law, we wish you and your family a safe, happy, and memorable Fourth of July weekend! As we celebrate the freedoms we enjoy and honor those who have served our country, we hope you have the opportunity to relax, spend time with loved ones, and enjoy all that makes this holiday special. Our offices are closed today, Friday, July 3, 2026, in observance of the Independence Day holiday. We will reopen on Monday, July 6, 2026, at 8:30 a.m. Thank you for your continued trust and support. We wish everyone a safe and wonderful holiday! Happy Fourth of July!
By Flink Maswick Law PLLC June 21, 2026
This Father’s Day, all of us at Flink Maswick Law honor the fathers, grandfathers, stepfathers, and father figures who help shape our families and communities throughout the Adirondacks and Upstate New York. Today we celebrate the men who lead by example, offer steady support, share their wisdom, and create lasting memories with those they love. Fathers play an invaluable role in the lives of their families. Whether you’re spending the day fishing, hiking, grilling with family, enjoying time on the lake, or simply relaxing with loved ones, we hope your Father’s Day is filled with laughter, happiness, and special moments.  From all of us in our Lake Placid, Tupper Lake, and Albany offices — Happy Father’s Day!
Show More