In addition, the arresting officers report has several glaring inconsistencies and contradictions with regard to not only the timeline but the dialogue which took place during the subsequent arrest. After refusing the breathalyzer I asked for an attorney and was told that whomever I call wouldn't answer the phone and they continued to question me, prior to, and after being brought to the barracks.
You bring up a great many questions including how does the State prove "operation". A clear path to all your answers is to sit down with your attorney and review all the issues.
Good Luck-
You didn't ask a question but I suggest that you hire a good criminal defense lawyer. You face a 1 year loss of your license in a DMV hearing that is separate from the criminal case.
While you so raise a number of good issues, I can tell you this: refusing a breathalyzer is grounds for your license to be suspended; however, before they suspend it, they have to conduct a hearing. You'll need an experienced attorney who will know what to look for and one that will be able to work out a favorable disposition. Regarding the remaining issues (not operating the vehicle, etc), you should point them out to your attorney also, so he/she can begin the process of getting the charges dismissed (if the inconsistencies are really that blatant).
You can be arrested without being allowed to speak with an attorney. At most, this would govern whether certain statements made by you can be used against you.
They do not have to catch you violating the law they have to prove that you were. This is like they do not have to catch someone pulling the trigger to convict them of murder.
You should be talking to a DWI defense lawyer, there, now. This is not a DIY situation.
Richard C. SouthardCriminal Defense AttorneyNew York, NY ·
The officers can prove operation in many ways including having observed you park and go into the convenience store. Or there can be circumstantial evidence including hot engine with you shutting off and exiting drivers side door. A full discussion of facts with a qualified DWI attorney will help you explore possible defenses. Hire one if you are financially able or make an appointment to discuss with your public defender ASAP
Todd Wylie CarpenterDUI / DWI AttorneyPoughkeepsie, NY ·
You can still be arrested for DWI even tho you may not have been in the vehicle when the police arrived. It is a very fact specific situation, however, and an experienced DWI defense attorney will know what to look for and discuss with you what problems there may be for you in such a case. Instances where the defendant is not in the vehicle at the time of the initial stop can present problems for the prosecutor which may work to your advantage, either by way of negotiating a lesser offense or defending the charge at trial. However, factors such as whether you were alone, if you admitted to driving, if you admitted to consuming alcohol prior to driving, if there is video of you driving, if there are witnesses to your drinking and/or driving, can all be problematic to your case, despite the arresting officers having never directly observed you operate a vehicle.
Your request for an attorney (which you claim was at least partially ignored) also requires further investigation, particularly if you requested to speak to an attorney prior to and for the purpose of determining whether or not to provide a sample for chemical test analysis. But again, determining if there are any issues in that regard is also very fact intensive and timeline specific process.
As always, I strongly encourage you to speak to an experienced DWI defense attorney as soon as possible and discuss your concerns with him or her while they are still fresh in your mind.
Matthew Adam-Philip DusenberryCriminal Defense AttorneyBrooklyn, NY ·
You weren't "never" in your vehicle - you drove to the convenience store. They may be charging you for driving to the store drunk.
Not allowing you to speak to a lawyer, inconsistencies in their stories, and taking your phone don't affect the legality of the arrest itself. However, if the police acted illegally, your lawyer may be able to have evidence suppressed, which would help your case.
Finally, refusing the breathalyzer is a separate issue. New York State law allows your license to be revoked if you refused a breathalyzer, even if the DWI case itself is ultimately thrown out. There will be a hearing, and you may want a lawyer there on your behalf. The refusal can also be used as evidence against you at trial.
