On 9/26 I left a bar feeling ill from too much alcohol. I had asked another patron to call me a cab. He did and said that it was an answering machine that said the cab was out of cell service & to call back in 10 minutes. He said he would call in 10 min. for me. I went outside for fresh air while waiting. After approx. 15 minutes I was freezing, so sat in my car to wait. A police officer came to my window, spoke to me & had me get out of the car. I told him i didn't feel well & was waiting for a cab. He asked me to do some field sobriety tests, i tried the balance & failed & he asked me to do heel/toe & I told him I have a diagnosed muscle & balance issue & couldn't reasonably perform either one. he attempted nystagmus(sp?), but I couldn't even see his black pen w/ the flashlight aimed @ me in the dark night! He searched my purse & removed 2 prescriptions in my name, 1 for Vicodin w/ approx 6 pills in it & an empty Ativan bottle. He asked me why i had them & I told him (again) that I have Fibromyalgia. He took me in the station & had me take a breathalyzer. I blew once, read"insufficient sample", I blew again longer and again "insufficient sample" after the second long exhalation I became extremely dizzy, nauseous and gagged. I said I didn't think I could do it agin because I felt too ill. He shouted at me, "are you refusing this test?" I said, "No, I didn't refuse, I just did it 2 times." He raised his voice more repeating the same question, I repeated my answer, he raised his voice even more literally shouting & I finally said "Yes, i guess so.". I was scared & confused by his behavior! He charged me with Operating Under the Influence of DRUGS! 1) How is this charge possible when I was in no way actually or intending to operate a vehicle and 2) How on earth can such a charge be upheld when there is no evidence whatsoever to prove an intoxicated level of drugs, especially in a chronic pain patient that would ALWAYS test positive for opiates? 3) does the officer have to specify onthe summons what I have been charged with, other than OUI? I was under the belief I had been charged due to alcohol. 4) At what point can a person claim intimidation against an officer who is shouting and clearly angry towards you and asking you questions while acting this way? Thank you so much for your time in this matter.
1 Answer from Attorneys
Hi, It seems like you were trying to be responsible, but the officer didn't see it that way. His behavior was clearly uncalled for, but a "refusal" is noted on the charges that he initiates and forwards to the district attorney for criminal prosecution and to the Bureau of Motor Vehicles for an administrative proceeding. A refusal brings elevated fines, a longer license suspension and jail time. You need to fight this OUI at both the court and BMV, to avoid these consequences. You should also identify the person who tried to get your taxi arranged, as their testimony will be very important. An "OUI" could be for drug impairment or alcohol. Operating a car is an element of proof, and, while you were not actually driving, theoretically and in accordance w/ the law, you could be found to have been "operating". You are well advised to hire an attorney to assist you through your defense. I'd be happy to speak with you further. Thank you for your inquiry and good luck resolving this.
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