Newburgh, NY asked in Traffic Tickets for New York

Q: Is it legal for a police officer to come to your home and demand a sobriety test in the home 2 hours after aaccident?

Car slide on ice and hit a pole. No drinking involved. Called AAA, they said they’d arrive shortly. It was cold and my husband had a cut on hand, not severe. My son picked up my husband, took him to our home to treat injury and I waited for A A A. Waited 2 hrs. Someone called police while I was with the car (off road). Cop comes and accused me of trying to protect a drunk driver. I was outraged. Cop goes to my home and demands my husband do a sobriety test..making him move furniture. When my husband was able to complete, cop says your eyes look glassy. It was 2am! He was in an accident, hurt and tired. Cop gives a ticket for speeding, crossing double yellow lines and leaving scene of accident and says he will be watching us daily. Most of the conversation was recorded. We were not drinking or speeding and the roads were clearly slippery in Hudson valley, ny the past four days.

Thank you.

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1 Lawyer Answer
Toshinori Isoai
Toshinori Isoai
  • Traffic Tickets Lawyer
  • New City, NY
  • Licensed in New York

A: First, your husband didn't get a summons for DWI, which is a relieving thing (even if there is no way for him to get convicted of that). FYI, Red eye, bloodshot and watery eyes, slurred speech, etc. are not necessary indicia of being under influence.

Keep in mind that the People (State) have the burden of proof for all the charges; they have to prove all the traffic violations against your husband beyond a reasonable doubt, and you do not have to DISPROVE anything. When it comes to traffic violations, the very first thing the People have to prove is that your husband was operating the vehicle when the alleged violations occurred. No operation means no conviction. This isn't difficult when a officer observed a violation (speeding, unsafe lane change etc) by himself, but there is no way in your case for him to prove the operation. Your husband (defendant) wouldn't testify (if this goes to trial) and you and your son may be subpoenaed but this will only lead to the possible finding by the court that your husband was driving, but won't be legally sufficient to convict your husband for speeding or crossing double yellow lines. Leaving a scene of accident charge will not probably stand either if your husband is the only party who was injured (no one else) and there is no assessable property damage. You should get a counsel.

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