Apartment parking garages aren’t an area where you can refuse to take a breath test, a state appeals court has ruled. The judges made the ruling in the case of a Union City man who police found passed out on a bench at Troy Towers, close to his car — which was parked backwards in the garage with its engine running.
Phillip Bertrand and his fellow tenants all “had the right to share” the garage, making it “quasi-public” under state statutes, the Appellate Division judges said. So Bertrand had no right to refuse a breath test, they said.
Union City police said found Bertrand on a bench 40 feet away from his car after responding to a report of a “possibly intoxicated driver” at Troy Towers.
The officer said his face was flushed and his breath smelled of alcohol, that he refused a sobriety test — and, in fact, was belligerent. After they arrested him, they said, he refused to give a breath sample at headquarters.
Bertrand asked a municipal court judge in July 2007 to dismiss charges of drunk driving and refusing a breath test.
The judge dismissed the DWI charge, since there was no direct proof Bertrand had been behind the wheel. But he kept the refusal charge, which is allowed under law.
Bertrand appealed, but the higher court agreed with the decision. However, it sent the case back to Municipal Court — noting that Bertrand’s attorney, Rakesh Desai, had told the judge it was his client’s first offense when it wasn’t.
Records show Betrand pleaded guilty to drunk driving in November 2006 in Weehawken municipal court.
“[His] sentence is illegal…,” the judges wrote. “We are compelled to refer this matter for further proceedings to determine whether the attorney’s statement was the result of ignorance or was a violation of duty to his candor to the court.”
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