Refusing a blood test but took a breathalyzer

Asked almost 3 years ago - 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.

Additional information

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. Steven Marc Raiser

    Contributor Level 13

    Answered . 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. Steven Everett Savage

    Contributor Level 15

    Answered . 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... more
  3. Eric Edward Rothstein

    Contributor Level 20

    Answered . 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.... more
  4. Richard C. Southard

    Contributor Level 19

    Answered . 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... more

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