Got DWI after cop approached my parked car for "welfare check", but was never asked anything pertaining to my well-being.

Asked over 2 years ago - Port Jervis, NY

Was parked at a gas station and given a DWI.Newspaper article with my case and police report said the initial reason for contact (questioning) was to "check on my welfare". Car was off, lights off, was parked at pump, and returned to my car after pumping fuel.Neither police officer ever inquired about my well-being,rather they seemed as if they approached me on a whim that I might be doing something wrong--it was 3am.The entire time in custody before being brought to jail I was never asked anything pertaining to my welfare.Is this a reason to have my case dismissed?I found a similar case: http://law.justia.com/cases/new-york/other-cour... Note: I also refused breathalyzer tests.

Additional information

When asked if I had been drinking I said that I had not. Was not seen driving.My vehicle is a convertible sports car that looks similar to a Porcshe, which I have been pulled over in many times before in other towns when doing nothing wrong-example--my car has only one license plate light.About a yr. ago I was pulled over by cop supposedly because one of my license plate lights was out.After cop ran license and reg. and let me leave I checked my license plate light and it was not out. Charges for above mentioned DWI include DWI, refusal, and open container which was on passenger side floor of my vehicle which only has two seats. Thank you for any input! It is appreciated!

Attorney answers (5)

  1. Hector Benjamin Perez

    Pro

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    Answered . The basis for approaching you, or the supposed "stop", will be a major issue in your case. From your description of the events it does not seem that your welfare was a concern, particularly if you were walking back to your car. Another issue that your attorney may bring up as a basis of dismissal is the fact that your vehicle was off. If you were in possession of your keys at the time when you were first seen walking back to your car, that may also be a basis for seeking a dismissal of your case. In order to charge someone with DWI the accused must be in operation of the vehicle, and from your facts it does not sound like you were in operation.

    So the answer to your question is yes, the police officer's allegation that he approached you to inquire about your welfare can be a basis for dismissing your case, irrespective of whether you refused the Breathalyzer test. Hire good local counsel with DWI experience to represent you. You may want to ask your attorney to see if there is video at the gas station where the incident occurred. It could help your case. Good luck.

  2. Howard A. Schwartz

    Contributor Level 20

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    Answered . The police do not have to check on your welfare. A judge will eventually determine if they had probable cause to approach you and investigate. I suggest speaking to a criminal defense attorney about your options.

    I have been a criminal defense attorney in New York for over 20 years. website: Brooklynlaw.net Phone #: 718-208-... more
  3. Joseph A Lo Piccolo

    Contributor Level 20

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    Answered . It is unlikely to be dismissed on this basis. If your attorney can get the officer to admit he had no real basis to check on you and subsequently arrest you, the evidence could potentially be supressed leading to a better disposition of your case.


    Joseph A. Lo Piccolo, Esq.
    President, Criminal Courts Bar Association 11'-12'
    Hession Bekoff & Lo Piccolo
    1103 Stewart Ave, Suite 200
    Garden City, NY 11530
    516-408-3666 (o) / 516-408-3833 (f)
    Jlopiccolo@hbclaw.net

    I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a... more
  4. Richard C. Southard

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    Answered . Ultimately it will be up to a judge at the hearing after hearing all of the evidence to determine if the police acted properly. Remember that any opinion a lawyer gives you is just that, an opinion and the lawyers on this site have not heard the claims by police officers as to what they observed. Ultimately this will be litigated before a judge.

    All answers are for information purposes only. Answering this question or any future questions does not form any... more
  5. Benjamin J Lieberman

    Contributor Level 20

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    Answered . What the officers did or didnt do will be explored at a hearing on this matter. If the court determines that the police had no right to approach you or that the police only used a pretext then any "fruits of the poisonous tree" will be suppressed and the case could get dismissed. It is very fact specific, I suggest you seek the assistance of a criminal defense attorney.

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