"refusal" to PBT- consequences in NY?

[sakaluski]

New York City

I was pulled over late in the evening while driving home and the officers told me I swerved lanes and was speeding. (There aren't any visible lane markings on those roads and the officers didn't specify a speed)

The officers told me that I smelled of alcohol and looked like I had been drinking. I told them I had nothing to drink.
They requested that I submit to a PBT and were very coercive. They threatened that I would lose my license if I didn't submit to it however if I blew under .11 they would let me go. That didn't seem to be trustworthy at all, I didn't feel safe on the roadside with them and wanted to go to the station to provide a BAC sample there.
I was not asked to perform any FST
I requested that they please confirm that their dashcam was recording. They told me they didn't have one.
When they had asked if I would blow into the PBT I asked them if I was free to leave. This was repeated two more times however I never told them I wouldn't do it.
I was taken to a station. On video I was asked If I would be willing to submit to an Intoxilyzer breathalyzer and I agreed. I blew a 0.000%
I was given 2 summonses and released.
1212 reckless driving
1193-a refusal of alco sensor/PBT

Given that there was no DWI or DWAI charge, are these charges serious enough where I need a lawyer? I've represented myself on several occasions in traffic court with decent success. Do I still face the possibility of a license suspension? I haven't been able to find many examples or case law of others in this situation.

 

[HighwayMan]

1212 reckless driving
1193-a refusal of alco sensor/PBT

First of all, who arrested you? Precinct officers or Highway Patrol? What precinct were you brought to? There should have been at least one Highway Patrol officer present to operate the Intoxilyzer and the video.

Secondly - THERE IS NO SUCH CHARGE AS 1193-a. If it's 1193(a) then that is still bogus since all of VTL section 1193 simply deals with penalties. It is not a chargeable offense. Besides - PBT's in NY mean nothing - they have received no judicial notice. Even if you refused the breath test at the station house it is not a criminal offense - a refusal is an administrative matter handled by the DMV. Period. There is no such thing as "refusal of alco sensor/PBT". You were dealing with officers who either were totally incompetent or were covering their butts for arresting you with no probable cause.

Given that there was no DWI or DWAI charge, are these charges serious enough where I need a lawyer? I've represented myself on several occasions in traffic court with decent success.

This will not be traffic court. This will be criminal court. What borough was this in and what court will you be appearing in? It's written on the summonses.


Sounds like these were some cowboys you ran into. If they brought you in you were arrested. If they had no probable cause to make the arrest to begin with then it sounds like a lawsuit may be a possibility. Of course, it's complicated by the fact that you're charged with reckless driving - there may be sufficient PC for that charge and while it may not be normal to arrest someone for it (as opposed to summonsing them) it IS a misdemeanor and IS arrestable.

You may wish to consult an attorney about the details of your case and see what counsel advises.

 

[sakaluski]

First of all, who arrested you? Precinct officers or Highway Patrol? What precinct were you brought to? There should have been at least one Highway Patrol officer present to operate the Intoxilyzer and the video.

Precinct officers took me in. The officer who operated the Intoxilyer may have been a Highway Patrol, though I wouldn't know how to tell. He seemed a bit more professional in conduct than anybody else I came across.

Secondly - THERE IS NO SUCH CHARGE AS 1193-a. If it's 1193(a) then that is still bogus since all of VTL section 1193 simply deals with penalties. It is not a chargeable offense. Besides - PBT's in NY mean nothing - they have received no judicial notice. Even if you refused the breath test at the station house it is not a criminal offense - a refusal is an administrative matter handled by the DMV. Period. There is no such thing as "refusal of alco sensor/PBT". You were dealing with officers who either were totally incompetent or were covering their butts for arresting you with no probable cause.

This will not be traffic court. This will be criminal court. What borough was this in and what court will you be appearing in? It's written on the summonses.

If I was cited with the wrong statute on the (traffic court) ticket I will motion to dismiss. Is this a bad idea? I'd rather not post the precinct/court info on this public forum however if you feel knowing that could somehow help me I'd share it privately.

Sounds like these were some cowboys you ran into. If they brought you in you were arrested. If they had no probable cause to make the arrest to begin with then it sounds like a lawsuit may be a possibility. Of course, it's complicated by the fact that you're charged with reckless driving - there may be sufficient PC for that charge and while it may not be normal to arrest someone for it (as opposed to summonsing them) it IS a misdemeanor and IS arrestable.

I've left out parts of the story which I don't consider to be relevant to this discussion but I will say there was some aggression and drama from the police. I kept cool and shut up. I still don't know 100% whether or not I was officially arrested, though that may not matter. I was not fingerprinted or photographed.

You may wish to consult an attorney about the details of your case and see what counsel advises.

I've spoken to council and since I have been summonsed to 2 separate courts I could be facing some pricey options, so before I pull the trigger with an attorney I'd like to learn as much as I can. I may even make a first appearance without council and see what I am facing. Again- is this a really bad idea?

 

[FlyingRon]

Highwayma: It's not section (a) of 1193 (which would be improper as there is a digit between there ... 1193 (1)(a)), I suspect it is actually 1194-A (or perhaps 1192-A) which are special rules for the under 21 crowd.

 

[HighwayMan]

Highwayma: It's not section (a) of 1193 (which would be improper as there is a digit between there ... 1193 (1)(a)), I suspect it is actually 1194-A (or perhaps 1192-A) which are special rules for the under 21 crowd.

Again, 1193 is simply penalties. Nothing there is chargeable. I'll assume the OP posted what is written on the summons and didn't get it wrong.

 

[HighwayMan]

...may have been a Highway Patrol, though I wouldn't know how to tell.

Simple. They wear boots and breeches.

If I was cited with the wrong statute on the (traffic court) ticket I will motion to dismiss. Is this a bad idea? I'd rather not post the precinct/court info on this public forum however if you feel knowing that could somehow help me I'd share it privately.

You're being ridiculous. How is telling me what court you are summoned to appear in a problem?

So you received two different types of tickets? One yellow and one pink?

I've left out parts of the story which I don't consider to be relevant to this discussion but I will say there was some aggression and drama from the police. I kept cool and shut up. I still don't know 100% whether or not I was officially arrested, though that may not matter. I was not fingerprinted or photographed.

It doesn't matter if you were fingerprinted or photographed. You were arrested. You were handcuffed and brought into the precinct station house. What borough was this? What happened to your car? Was it towed?

The issue is whether there was probable cause to arrest you and based on what you've said it seems like the answer to that is NO.

 

[HighwayMan]

Also, did the same officer issue both tickets?

In a case like this you should have received two criminal summonses, not one and one. I don't know for sure, but this may also be a violation of NYPD policy and procedure.

 

[FlyingRon]

Again, 1193 is simply penalties. Nothing there is chargeable. I'll assume the OP posted what is written on the summons and didn't get it wrong.

Again, there is no such thing as 1193-a. PERIOD. It has to be an error. There is no law with that number in any form of punctuation.
Either it is a bogus cite for something in 1193 (which would have to be 1193 (1)(a) because there again there is no 1193(a)) or
as I suspect, it is 1192-a or 1194-a which have the same punctuation as his citation and are both CHARGEABLE offenses.

One of these even covers the situation he is talking about (refusal of test, 1194-a). While I still don't think 1194-a applies, it's likely this is what he was intended to be cited with.

 

[HighwayMan]

Again, there is no such thing as 1193-a. PERIOD.

Yes, I know that. However look who we are dealing with here. (The cops I mean). I have no doubt that they did write 1193 (a) in some form and meant 1193 1a.

It is a very common thing to see statutes cited incorrectly on traffic and other type of tickets in exactly this way. I'm betting that's it. But since the OP only seems to come around every few days we'll have to wait and see!

 

[sakaluski]

Simple. They wear boots and breeches.

could have been, but I don't remember. I was only in the room with that guy for enough time for him to do his part and I wasn't paying much attention to uniform variations.

You're being ridiculous. How is telling me what court you are summoned to appear in a problem?

Perhaps it's ridiculous but you said yourself they sound like cowboys and I'd rather not meet them in court with a printout of this dialog. (it's happened before) I'll PM you.

In a case like this you should have received two criminal summonses, not one and one. I don't know for sure, but this may also be a violation of NYPD policy and procedure.

So you received two different types of tickets? One yellow and one pink?

Yes I received one yellow ticket and one pink by the same officer, written and given to me upon release- 4 hours after the time indicated on them. (I could hear them discussing what they wanted to charge me with after I had the 0.000 BAC) If the officers violated policy and a lawyer could bring this to light I would retain somebody but being that my situation isn't typical DWI or typical criminal or traffic, it's been difficult getting good information from them. Everybody wants to get me in their office first then tries to scare me with how much trouble I can be in if I don't pay them $4000 in retainer without really listening to any of these details.

It doesn't matter if you were fingerprinted or photographed. You were arrested. You were handcuffed and brought into the precinct station house. What borough was this? What happened to your car? Was it towed?

A 3rd officer joined to drive my car to the precinct where I was released.

The issue is whether there was probable cause to arrest you and based on what you've said it seems like the answer to that is NO.

(they claimed) I refused a PBT. Is that not PC for arrest?

Again, there is no such thing as 1193-a. PERIOD. It has to be an error. There is no law with that number in any form of punctuation.
Either it is a bogus cite for something in 1193 (which would have to be 1193 (1)(a) because there again there is no 1193(a)) or
as I suspect, it is 1192-a or 1194-a which have the same punctuation as his citation and are both CHARGEABLE offenses.

One of these even covers the situation he is talking about (refusal of test, 1194-a). While I still don't think 1194-a applies, it's likely this is what he was intended to be cited with..

the statue written on the yellow ticket is as "1193A" (no actual hyphen written- sorry i don't think that changes anything here. There is definitely no "1a" in it) I am over 21.
If the officers intended on citing me with a different statute, surely the prosecutor will try to change that when I appear in traffic court. Can I compel the court to charge or dismiss?

 

[HighwayMan]

(they claimed) I refused a PBT. Is that not PC for arrest?

Definitely NOT. NO. NEGATIVE. The PBT is not admissible in court - it means nothing. It can certainly be used to reinforce probable cause, but in and of itself cannot be used for that.

the statue written on the yellow ticket is as "1193A" (no actual hyphen written- sorry i don't think that changes anything here. There is definitely no "1a" in it) I am over 21.
If the officers intended on citing me with a different statute, surely the prosecutor will try to change that when I appear in traffic court. Can I compel the court to charge or dismiss?

There is no prosecutor. A traffic ticket is returnable to the Traffic Violations Bureau. Plead not guilty and go to your hearing. The ticket should be dismissed pretty easily. When the ticket gets entered into the computer in Albany someone may change the charge because I can assure you that the charge as written does not exist in the system. Make sure you keep a copy of the ticket to show the judge in court if need be. You can answer the ticket online according to the instructions printed on the ticket, in that case just keep the yellow copy.

No one is going to be showing up in court with any printouts. The officers will not be appearing in criminal court unless it gets to a trial. In TVB they can show up with as many printouts as they want and it won't help their case.

 

[HighwayMan]

At the very least you should make a complaint to the Civilian Complaint Review Board regarding the officers you encountered that arrested you.

It sounds like they had no PC to arrest you and then made up a charge later on.

You don't need lanes to "swerve". You're leaving out details that are important to me like which borough this occurred in. If they were precinct officers then it was very unlikely that they could tell what speed you were traveling at.

 

[HighwayMan]

By the way, I do not read or reply to private messages from posters unless it's a "thank you". Whatever you PM me is subject to be posted by me - there are no secrets here. Information provided is for the benefit of anyone and everyone reading the original post and the responses. That's the whole point to this forum.

 

[sakaluski]

update

You can answer the ticket online according to the instructions printed on the ticket, in that case just keep the yellow copy.

I went to answer the traffic ticket online last week and got an error indicating it hadn't yet been submitted. I just rechecked and got the following error "The ticket entered has been returned to the law enforcement agency that issued it. No further action with the Traffic Violations Bureau regarding this ticket is required"

It didn't actually say that it was dismissed so should I still expect something else?

Definitely NOT. NO. NEGATIVE. The PBT is not admissible in court - it means nothing. It can certainly be used to reinforce probable cause, but in and of itself cannot be used for that.

At the very least you should make a complaint to the Civilian Complaint Review Board regarding the officers you encountered that arrested you.

It sounds like they had no PC to arrest you and then made up a charge later on.

Which is why I am suspicious that I may have not been officially arrested and leaves me with a few more questions regarding the criminal charge.

Is there a simple way to first confirm whether or not there is record of this arrest?

What is the procedure to motion for both videos (dash cam video and intoxilyzer video) with discovery for a NY criminal case?
Is it policy yet that NYPD requires dash cam video?

Should I file a complaint to the Civilian Complaint Review Board before my first court appearance for the criminal summons or is that best to be done afterwards?
And if so what complaint could I file?- since 1212 an arrestable offense it seems that is all the PC they need to justify. In a legal sense I still don't understand why you suggest they wouldn't be able to prove PC.

If they were precinct officers then it was very unlikely that they could tell what speed you were traveling at.

they were precinct officers and never mentioned specific speeds when I was pulled over. I doubt my speed was measured. After they said that I "swerved and was going fast" there was no further attention or discussion (with me) of the reason for the stop, until I was handed the 1212 summons 4 hours later. I didn't ask for details.

 

[FlyingRon]

Doesn't matter if you were arrested or not. The prosecution is free to revise the charges up until the time the trial actually starts. There's nothing you're going to do about it with the charges in limbo as they are.

What complaint are you intending to file? Filling out citations wrong isn't particularly actionable (though it might end up with the officer being retrained a bit).