not pulled over by the officer my vehicle was off at the time of his arrival and I was outside of my car when he approached me. I was given field sobriety tests but told the officer that I was trying to have my car towed since it was broken down but he treated me like a criminal from the get go. I was not arrested until we were at the station but I was arrested before they gave me a breathalyzer which I did fail by blowing a .16. My question is was there probable cause for him to take me and arrest me or is there some dirty police work on his part?
You need to sit down with an attorney to discuss this case. There is nothing wrong with an officer stopping to see what is happening when a car is on the side of the road waiting for a tow truck. I would be curious what led him to decide to test you. I am assuming that he will say he smelled alcohol, saw your eyes were red, voice slurred etc. Regardless, this should be reviewed by an attorney. Hire one as soon as possible.
DWI's are very challenging. Police get a lot of wiggle room. I usually obtain all the discovery and then see if there is anything that can be challenged. Your facts point both ways. For example, the fact that you were the only one by the car is circumstantial evidence that you were the driver. On the other hand, if there was a bar nearby you could have gone for a drink after the vehicle was inoperable. Those are just two scenarios. A consultation with an attorney is necessary. I wish you luck.
Make sure you keep the repair records from the car so that you can prove that it was not operable at the time the police arrived. You may need to bring the mechanic in as well. Also did you admit to the officer that you were driving at any point. The matter may be on video.
Much more information is needed to evaluate this case. However the police were doing their job. They have what is called a "caretaking" function. This will cover their actions based on your post. They likely smelled alcohol and reasoned you had operated the vehicle in that condition. A case State v. DiFrancisco may help here. They have to prove the condition existed at the time of operation. Were their open containers in the vehicle? Or a bar nearby as a colleague asks? Can you establish the vehicle was disabled on the road for a long time? What did you say to the cops? Did you admit driving? All these topics and more need to be examined. Call with more information.
You can only be charged with DWI/DUI if you were driving or in actual physical control of your vehicle while either having a BAC of .08 or more and/or while your normal faculties impaired to the point that you couldn't safely operate a motor vehicle. You don't appear to have been observed in either situation. However, as other's have written here, the police report must be examined. Cases tend to look their best when being described by the accused. Consider hiring a good local DWI attorney that can go over the specific facts of your case.
Without having an opportunity to review the police report submitted in support of the arrest I'm gonna hazard a guess as to what is in the report; "Odor of alcohol emanating from the operator, admission of drinking earlier, failure to perform the field sobriety tests to standard, bloodshot glassy eyes, difficulty producing documents, agreed to take the tests and failed breathalyzer etc. etc. etc.". That being said, you absolutely need to retain an experienced dwi attorney in your are to explore all avenues of attack against the state's evidence.
My colleagues have all offered sound advice. I advise you to speak with an attorney who can help you prepare your defense. Remember, there is no plea bargaining in NJ on DUI cases. Prosecutors cannot "give you a good deal" or ANY deal. Your best bet is to hire counsel who can defend you.
Under these facts, there may be enough to raise sufficient doubt as to whether you operated the vehicle while under the influence. Without access to the police report and statement of the arresting officer(s) it's impossible to say for certain.
Again, I suggest you contact an attorney. A 1st DUI conviction will consist of a license suspension and hefty fines, as well as the possible imposition of an interlock device. Your ability to get to/from your job may be significantly impaired as well.
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