A driving while intoxicated charge against a 77-year-old Riverhead man who hit a 5-year-old boy riding a bicycle on Aug. 4 was dismissed by Riverhead Town Justice Lori Hulse Monday.
The move came at the recommendation of the Suffolk County District Attorney’s office, which said the evidence in the case doesn’t support the charge.
Meanwhile, the man’s attorney said he is planning to file a federal civil rights lawsuit against the town and the police department over the incident.
On Aug. 4, at about 6:41 p.m., William Downing’s 2003 Cadillac Escalade hit a child on a bicycle between Lewis Street and Doris Avenue in Riverhead, according to police, who said the child, whom police did not publicly identify, suffered serious head injuries and was airlifted to Stony Brook University Hospital.
“I was coming home on Lewis Street, I made a left turn from Lewis onto Doris Avenue, and all at once, the bike came out,” Mr. Downing told reporters Monday. He said he was driving about 10 mph.
“I stopped my truck, I got out and called 911 and said I hit a kid,” he said. He stayed at the scene and waited for police to arrive.
Police asked if he had been drinking, and he said he had drunk a half can of beer.
Mr. Downing was later arrested by police and charged with DWI.
His attorney, Daniel Rodgers, said police at the scene had Mr. Downing submit to a portable breath test, a test that is considered unreliable by prosecutors, but which often lets police know if they should do further tests as to whether a person is intoxicated.
A more accurate breath test is done at the police station using a Breathalyzer machine, and the most accurate test is a blood test, also done at headquarters. The results of blood tests take weeks, Mr. Rodgers said.
Riverhead police administered the portable test to Mr. Downing, which revealed a blood alcohol content reading of .05 percent, which is lower than the .06 BAC needed for a driving while ability impaired charge, which is an infraction. The level for a misdemeanor DWI charge is .08.
Mr. Rodgers said police never asked Mr. Downing to submit to a Breathalyzer test, which would have cleared him immediately. Mr. Downing did submit to a blood test on the night of the accident, and those results came back several weeks later indicating that Mr. Downing’s BAC was .03, lower than the requirement for a DWAI or a DWI charge.
But under state law a DWI arrest can be based on the BAC and on the police officer’s observation.
In this case, Mr. Rodgers said, the charge was based only on the officer’s observation.
Mr. Rodgers questioned why Mr. Downing was treated differently than most people charged with DWI. Police arrested Mr. Downing and kept him in a police lockup until the next morning. They also issued a press release indicating that he was driving drunk and hit a child.
“He had to spend the night in jail knowing that when he got out in the morning, the whole community is going to know that he got drunk and ran over a 5-year-old boy near his house,” Mr. Rodgers said.
Riverhead Town Police Chief David Hegermiller could not be reached for comment.
Mr. Rodgers said police knew they had the portable breath test result that indicated Mr. Downing was not intoxicated or impaired and they locked him up anyway.
Mr. Downing is planning to a file a notice of claim this week against the town and the police department alleging civil rights violations, Mr. Rodgers said.
A notice of claim reserves the right to file a lawsuit against a municipality.
Mr. Rodgers said he has already filed a preservation order, seeking to ensure that police don’t destroy any of the evidence that could be used in the lawsuit.
Mr. Rodgers said it’s his understanding that the injured boy, who lives on the same street as Mr. Downing, has since been released from the hospital.
Photo caption: William Downing, right, with his attorney Daniel Rodgers outside Riverhead Town Justice Court Monday morning. (Credit: Tim Gannon)