All charges were dismissed today against William H. Downing, the Riverhead man accused of driving while intoxicated when he struck a boy on a bicycle Aug. 4 on Lewis Street.
Assistant District Attorney Brad McGill moved to dismiss the charges “in the interests of justice” in an appearance this morning before Riverhead Town Justice Lori Hulse.
Downing appeared in court with his attorney, Dan Rodgers of Southampton, who after the appearance reiterated his intention to sue the Riverhead Town Police Department and the Town of Riverhead for false arrest and civil rights violations.
“I want to make it very clear that from the moment this accident — and that’s what it was, an accident – from the moment this accident occurred, the police had physical evidence that William was not impaired,” Rodgers said.
Police used a portable device at the scene to measure Downing’s blood alcohol content after Downing admitted to drinking half a can of beer prior to driving. The test showed a .05 percent BAC reading, under the legal limit for impairment (.06 percent).
Police Officer Robert Sproston, who made the arrest, charged Downing based on his own observation of the defendant having the odor of alcohol on his breath, Rodgers said.
“Remember, it is not illegal to drink and drive. It is illegal to drink too much and drive,” Rodgers said. “The police had evidence at the scene that my client was not intoxicated.”
“It would have been appropriate for police to ask William to go to the police station for a Breathalyzer test, which is more accurate than the portable device,” Rodgers said. “He would have gladly done so. Instead they cuffed him and arrested him.”
Rodgers questioned the police decision not to administer the Breathalyzer at the station, which he said would have immediately exonerated his client. Instead, police asked Downing to submit to a blood test, which he voluntarily agreed to, Rodgers said. But the report of the blood test takes two weeks to come back.
“Meanwhile, he was handcuffed, processed, held overnight in the lockup, and submitted to public ridicule and scorn,” Rodgers said.
The lawyer said he has already filed a preservation order to ensure that police and court evidence in the case is preserved. He will file a notice of claim by the end of the week, Rodgers said. A notice of claim is required before anyone can bring a lawsuit against a municipality.
Flanked by his lawyer and his wife Patsy, Downing stood on the steps of the police/justice court building on Howell Avenue this morning and recalled the evening of the accident. He was heading to the Lewis Street home they’ve lived in since 1972, he said. The youngster rode into the street in the path of his vehicle, he said.
“I couldn’t stop in time,” said Downing, 78, wiping away tears. He got out of his SUV and went to the boy, who had been thrown from his bike. The child seemed to have been unconscious, he said, but then began calling for his mother. There were no adults around, Downing recalled. Only after police arrived on the scene did the boy’s mother come out of the house. “She was very upset, crying and screaming,” Downing recalled.
Police have not identified the child, age 5, or provided information on his condition. He was airlifted to Stony Brook University Hospital, police said.
Rodgers said today he understands that the child was released from the hospital within a few days and is going to be fine.
“Unfortunately the child was unsupervised and wore no helmet as required by law,” Rodgers said.
The boy’s family lives just three doors down from Downing on Lewis Street, Rodgers said.