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Refusing a blood test but took a breathalyzer

Riverhead, NY |

I am being charged with DWI even though I only blew a .03. I am 24 years of age so I know that is legal in my state. I was caught with heroin in my possesion so the police decided to give me a DWI just because I had the drugs in my possesion. I told the police I had partied the night before and stopped at 2 a.m. I was arrested at 10:30 the next morning. The police wanted to do a blood test but I refused since I had no lawyer present and I have no way of knowing if the test are done in a proper fasion.The officer claimed I blew a stop sign that I had stopped and waited at for about 3 minutes because of traffic. Then when I got pulled over he immediatly told me I was going to jail because I forgot my I.D. at home. I got out of the car to look for an I.D. and he stuck his hands in my pockets.

The police officer seems to be making a story up. I never blew a stop sign that he claimes I ran, I was not under the influence at the time (it was 10:30 a.m. I just woke up to go to work). His first words besides Liscense and registration was "your going to jail" for not having an I.D. when in the past I never went to jail for that reason. When i got out of the car he asked me what was in my pockets and I pulled out a 5 dollar bill and then he just stuck his hands in my pockets. But he is claiming "he felts something sharp". Which is totally untrue because he didn't even pat me down first.

Attorney Answers 4


  1. Most likely they're charging you with a "combined influence" DWI - a mixture of drugs and alcohol. The search you described (him sticking his hands in your pocket) does not sound legitimate. However, I would need to know more facts since there is a grey area, in that the police can search your pockets incident to the arrest, therefore whether there was a valid arrest before he found the heroin will likely be the biggest issue in the case.


  2. I agree with Attorney Raiser. The legitimacy of the search depends on a number of details you haven't yet provided.

    Any answers given here do not indicate the existence of an attorney-client relationship between you and me, or between you and my firm. In order for such a relationship to develop, I must be admitted to practice in your jurisdiction, you and I must countersign a retainer agreement, you must pay my fee, and we must speak in confidence. If all of these conditions are not met, I am essentially answering a hypothetical for the purposes of discourse.


  3. What's your question? In NY, they would need a blood test to prove you had drugs in your system and I can't see you being convicted of DWI on a .03. Have you retained a good criminal defense attorney?

    I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 385-8015 or via email at Eric@RothsteinLawNY.com. The above answer is for informational purposes only and not meant as legal advice.


  4. A BAC reading of .03 is prima facie evidence that you were NOT INTOXICATED. Were you also charged with VTL 1192.4? With no blood test they can only rely on your statements [you may still have drugs in your system 8.5 hours later] The police could have sought judicial intervention to force you to give blood. Plus there is a definite question about the legality of the search. which could lead to the possession of the heroin evidence and a dismissal of the 220.03 charge (possession 7th degree). You have lots of legal issues for an experienced criminal defense attorney to litigate and strengthen your defense. I suggest you retain experienced counsel if you are financially able. Feel free to call me at 212-385-8600 or contact me via my website below if you have any additional questions.

    Legal disclaimer: All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. However, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.southardlaw.com

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