In a recent post I discussed two DWI cases I've been handling. In the first, a DWAI with a 0.07 BAC, the ADA has agreed to take this one "out of alcohol". My client will plead to a fairly severe speeding ticket to resolve the case. We had a strong case because my client had passed 4 of 6 field sobriety tests, and the Trooper apparently made some other mistakes with his paperwork.
In the second, my client's car broke down near his home. He walked home. A neighbor saw him and called the police. The police went into his home and arrested him. He blew a .24 BAC. There was a substantial gap in time between when he got out of his car and when they got to him in his apartment - enough time for him to have consumed a substantial amount of alcohol, and thereby making the breath test's validity dubious.
We just had the suppression hearing on that. I discovered a very serious problem for the prosecution. According to the Supreme Court (in Payton v. NY and Welsh v. Wisconsin), police cannot arrest someone in their home without both probable cause and "exigent circumstances".
There is a case in our local NY appellate court, People v. Odenweller, that pushed beyond what the Supremes allowed, but still didn't go as far as would be required in our case. Welsh v. Wisconsin allowed a DWI arrest where the police had been in "hot pursuit" of the defendant when he ran into his home. In Odenweller, the Court extended this to "lukewarm pursuit". They pretty much made that one up, but even so, the facts of our case are much more favorable to us.
Most attorneys feel that local judges will bend over backward to favor the prosecution and the police. This case will require serious bending, and would likely be overturned on appeal. I'd take this one up to the Supreme Court if I had to.