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.
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 #: 718-208-6094 email: firstname.lastname@example.org. This answer is only for informational purposes and is not meant as legal advice.
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)
I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.
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 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.reasonabledoubtny.com
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.