Can I sue for false arrest DWI

[quincy]

My point was he refused to go to the hospital where they would do the blood draw he requested and at that point they said to hell with it and charged him.

The charge potentially could stick, too. Under some circumstances, the smell of alcohol alone can be enough to convict him of DWI if he refused testing (although I think a dismissal is probably more likely here). And a refusal to test is an immediate license revocation.

He needs a criminal defense attorney if he wants the best outcome.

 

[PayrollHRGuy]

The charge potentially could stick, too. Under some circumstances, the smell of alcohol alone can be enough to convict him of DWI if he refused testing (although I think a dismissal is probably more likely here). And a refusal to test is an immediate license revocation.

He needs a criminal defense attorney if he wants the best outcome.

Couldn't agree more.

I have to assume if they know he ran through a 4 way stop that there was a witness of some sort maybe even the police themselves. So even if the DUI is dismissed there is still the reckless driving that the OP has pretty much admitted to.

 

[quincy]

Couldn't agree more.

I have to assume if they know he ran through a 4 way stop that there was a witness of some sort maybe even the police themselves. So even if the DUI is dismissed there is still the reckless driving that the OP has pretty much admitted to.

Yup. He needs to stop talking. He is not helping himself by trying to shift blame to the police.

 

[justalayman]

My point was he refused to go to the hospital where they would do the blood draw he requested and at that point they said to hell with it and charged him.

But the point is they do not have the bac levels to convict which appears to be a requirement under the statutes

It is the obligation of the police to take action required to obtain the test. If the op did not refuse the test itself it isn't something that can be held against him.

 

[quincy]

​

But the point is they do not have the bac levels to convict which appears to be a requirement under the statutes

It is the obligation of the police to take action required to obtain the test. If the op did not refuse the test itself it isn't something that can be held against him.

They don't necessarily need BAC levels if he smelled of alcohol. That can be enough to convict him if he failed to stop at a stop sign and refused testing.

Here is a link to Atkins v. Moye, 277 NC 179 (1970): https://www.courtlistener.com/opinion/1264432/atkins-v-moye/

 

[justalayman]

Actually I need to retract my statement. I skipped over (a)(1) somehow.

(1) While under the influence of an impairing substance; or

Although I haven't researched it, that would allow a cops testimony to be adequate to convict in some
State, possibly even North Carolina.

I thought it odd there wasn't such a situation in the law that didn't allow for the observation of a cop allow for conviction. Must be fatigue


Ya, that's it

Just real tired due to working long hours for a long time

 

[quincy]

Actually I need to retract my statement. I skipped over (a)(1) somehow.



Although I haven't researched it, that would allow a cops testimony to be adequate to convict in some
State, possibly even North Carolina.

I thought it odd there wasn't such a situation in the law that didn't allow for the observation of a cop allow for conviction. Must be fatigue


Ya, that's it

Just real tired due to working long hours for a long time

I certainly can understand long hours. I rely on caffeinated beverages to fuel my brain.

Police observations (and smells) - although perhaps easier to defend against - can support a conviction.

 

[CdwJava]

I have made DUI cases without chemical tests for years. In fact, in CA, for there was almost half a year after the USSC effectively mandated warrants where we were legally unable to get a warrant to test blood because state law had no provision for it! And, even with a warrant, if the blood cannot be drawn safely, there would be no BAC or drug test.

I suspect there are pieces to this tale that are missing, because I imagine that the police would have sought a compelled chemical test if they suspected drugs or alcohol.

 

[quincy]

I have made DUI cases without chemical tests for years. In fact, in CA, for there was almost half a year after the USSC effectively mandated warrants where we were legally unable to get a warrant to test blood because state law had no provision for it! And, even with a warrant, if the blood cannot be drawn safely, there would be no BAC or drug test.

I suspect there are pieces to this tale that are missing, because I imagine that the police would have sought a compelled chemical test if they suspected drugs or alcohol.

I share your suspicion that something might be missing from the story that has been told.

Whether tchandlerj is being less than honest with us here is of little real consequence (although it skews our advice) but he will need to be totally honest with his attorney if he wants and expects an effective defense.

 

[justalayman]

I have made DUI cases without chemical tests for years. In fact, in CA, for there was almost half a year after the USSC effectively mandated warrants where we were legally unable to get a warrant to test blood because state law had no provision for it! And, even with a warrant, if the blood cannot be drawn safely, there would be no BAC or drug test.

I suspect there are pieces to this tale that are missing, because I imagine that the police would have sought a compelled chemical test if they suspected drugs or alcohol.

but the law must allow for the conviction based on facts other than bac results. I misread the law in this situation and the law does appear to allow for conviction without chem test. I don't have the self initiative to research the remaining states to see if all states allow for a dui conviction based on observation.

 

[quincy]

but the law must allow for the conviction based on facts other than bac results. I misread the law in this situation and the law does appear to allow for conviction without chem test. I don't have the self initiative to research the remaining states to see if all states allow for a dui conviction based on observation.

Even if all states allow for the possibility of a DUI conviction based on police observations alone, I think it would be awfully difficult to actually get a conviction. I would think any good criminal defense attorney could argue convincingly and successfully that there is no solid evidence.

A reckless driving conviction would be far easier to support.

 

[cbg]

Good Lord, is this STILL going on?

 

[quincy]

Good Lord, is this STILL going on?

Yup. Apparently some of us have a lot of free time today/tonight.

 

[HighwayMan]

Even if all states allow for the possibility of a DUI conviction based on police observations alone, I think it would be awfully difficult to actually get a conviction.

In general or in this case in particular?

Generally speaking if an officer makes good observations and records them in his report, it's actually quite easy to obtain a conviction for a DUI/DWI.

 

[CdwJava]

In general or in this case in particular?

Generally speaking if an officer makes good observations and records them in his report, it's actually quite easy to obtain a conviction for a DUI/DWI.

That has been my experience as well. Obtaining a DUI alcohol conviction for a per se violation cannot generally be done without a chemical test, but for drugs and even impairment, generally, absolutely possible. And, of course,there are impairing substances (i.e. inhalants) that purge from the system so swiftly that a chemical test is not going to find them one way or the other.