Adsit added that Giacona should have been immediately arraigned upon his arrest Friday so a judge could take his driver's license. She said the law requires the suspension to happen immediately when a DWI suspect refuses a chemical breath test.

Butler disagreed with that assessment.

"Our policy as well as the law (section 1194 under article 31 of NY Vehicle and Traffic Law) does not require an immediate arraignment for those that refuse to submit to a chemical breath test," he said in an email, noting that police do not have the authority to suspend a driver's license. "This case is no different from the dozens of other refusals we get every year. Unless there is some extenuating circumstance relative to a DWI refusal case, we have never arraigned these subjects immediately."

As of Tuesday afternoon, the assistant district attorney said Giacona still had his driver's license. No new arraignment date has been set.

"(Giacona) was given an appearance ticket and kept his license all weekend," she said. "I don't understand why that happened. ... Giacona is getting something no other similarly situated defendant gets, which is to keep his license when it should be suspended."