Legal Question in Criminal Law in New York

Felony DWI common law

my husband and myself were returning home one eve. My husband turned on a road to ''relieve'' himself and when backing into a driveway to tuen around he went into a ditch and hit a post (breaking it) the vehicle was not coming out so he and I got out and went to the house of whose post he hit to call for a tow truck. Upon the tow truck arriving so did the state police at which time they wanted to make an arrest asked who was driving the vehicle my husband denied doing so as he was intoxicated and I of course said that I was not driving. I was taken into custody given 6 tickets one for Felony DWI common law even though I was not driving and was made to believe that if I did not take the bac test that I would be sitting in jail. The officer did not at any time give my husband a test nor did he believe that I was not driving. The reason my husband did not own up to his being the driver is due to a DWI as a felony less than 10 yrs. ago. The post was repaired the next day and I did take a bac test though was also given a ticket for failure to do so. I also did not and do not possess a drivers license. I am not sure of the legalitites of this arrest considering neither of us was even in the car when the police arrived.

Asked on 10/13/05, 9:36 am

2 Answers from Attorneys

Brendan Chao Brendan Chao - Attorney & Counselor at Law

Re: Felony DWI common law

Operation of a motor vehicle is one of the elements of the crime of DWI that the prosecutor must prove beyond a reasonable doubt. What you have described does cast reasonable doubt on the prosecutor's case. If you have not already done so, you should immediately seek legal counsel.

Read more
Answered on 10/13/05, 10:41 am
Robert Evans Robert S. Evans esq.

Re: Felony DWI common law

You have some real good defense issues for trial. I am a former traffic violations bureau administrative law judge, now in private practice. I do these types of cases quite often and I will be happy to discuss the possibilities with you . Please contact my office to set up a free consultation

Read more
Answered on 10/17/05, 12:40 pm

Related Questions & Answers

More Criminal Law questions and answers in New York