Q: I have a refusal hearing coming up. Should I testify at the hearing or not?
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- New York
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A: This is a difficult question to answer since several factors go into the decision. If you do testify, both the judge and the police officer can cross examine you. The officer must testify first, and if your attorney is able to cross examine the officer effectively, it is probably better that you do not testify. For example, if your attorney is able to create an issue as to the probable cause for the stop, or whether the refusal warnings were given clearly and properly, it would be better if you did not testify since you might rehabilitate the case for the prosecution. Conversely, if you have a weak case, you might have no choice but to testify to substantiate that you did not refuse, or that you did not "persistently refuse"--that is, the prosecution must show that you refused more than once.
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