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Improper Roadside Sobriety Tests

Under New Jersey law (N.J.S. 39:4-50), you can be convicted of driving while intoxicated (DWI) in two ways:

  • Breath or blood test results show that you had a blood alcohol concentration (BAC) of 0.08 or higher at the time of your arrest (0.04 if driving a commercial vehicle); or
  • Other evidence shows that your physical and mental faculties were so impaired that you could not operate your car safely.

If prosecutors choose the second way to pursue a DWI conviction, they typically will try to present evidence that you failed roadside sobriety tests, or field sobriety tests. For this reason, you need to understand your rights when it comes to these tests. You should also know how a New Jersey DWI defense lawyer can use an officer’s failure to properly administer roadside sobriety tests to defend against your charge.

Can You Refuse to Submit to Field Sobriety Tests?

When an officer stops your car in New Jersey, the officer typically will come to your window, ask for your driver’s license and registration and, possibly, ask you to step out of your car. As an officer does this, the officer will look for signs of possible impairment such as:

  • Bloodshot and watery eyes
  • Slurred speech
  • Smell of alcohol or drugs such as marijuana
  • Swaying and grasping for support.

If the officer suspects that you are impaired, the officer may then ask you to submit to a field sobriety test. The officer will use your performance on the tests to develop probable cause to arrest you for DWI and give evidence that the prosecution can use to convict you.

As a New Jersey driver, you give the police “implied consent” to administer a breath or blood test. If you refuse a breath test, the police can take you to a hospital for a blood test. Also, you can lose your driving privileges.

However, you have the right to refuse to submit to field sobriety tests. You also face no punishment for your refusal. With that said, an officer typically won’t tell you that you have the right to refuse the test. Also, most people tend to go through with the tests in order to show an officer that they are cooperative.

How Should Police Administer Roadside Sobriety Tests?

If you submitted to roadside sobriety tests, your lawyer will focus on the reliability of the tests that an officer administered. The reliability typically will depend on whether the officer had training to administer National Highway Traffic Safety Administration (NHTSA)-approved tests, and whether the officer followed the NHTSA’s methods. If the officer in your case lacked proper training or failed to follow NHTSA methods, your lawyer may effectively argue that the test results lack reliability.

The two tests that New Jersey police officers most often administer are:

  • Walk-and Turn Test

Before you take the test, the officer must instruct you to walk, heel-to-toe, along a straight line. The officer should tell you to keep your arms at your side and your eyes on your feet. You should take nine steps, counting each step out loud, and then turn on your front foot and walk back in the same manner. The officer will observe whether you followed instructions, lost your balance, failed to stay on the line, turned improperly or failed to walk the right number of steps.

  • One-Leg Stand

For this test, an officer must instruct you to stand with your feet together, your arms at your side and your eyes on your feet. The officer should tell you and show you how to raise one leg roughly six inches from the ground, point your foot out and hold it for 30 seconds. The officer will observe whether you followed instructions, lost your balance, put your foot down more than three times or lost count.

The test results in your case may be unreliable if an officer failed to give you proper instruction or failed to administer the tests in a well-lit area on a flat, dry and hard surface. Also, if you wore heels of two inches or higher, the officer should have asked you to remove your shoes before testing began. All of those factors can call test results into question.

Officers may also administer a third test called the Horizontal Gaze Nystagmus Test. In this test, the officer will hold a “stimulus” such as a light or pen about 12 to 15 inches from your eyes. The officer will then move the pen laterally and observe whether your eyes follow it in a smooth way or “jerk” as they move to the extreme range of your peripheral vision.

However, New Jersey does not allow prosecutors to present HGN test results as evidence of a driver’s impairment. Instead, prosecutors can present HGN test results only to explain why an officer arrested a driver. See State v. Doriguzzi, 334 N.J. Super. 530, 760 A.2d 336 (2000).

Get Help from an Experienced New Jersey DWI Lawyer

In addition to the above tests, an officer may ask you to recite the alphabet, hold your head backwards or count complex number patterns. However, no standards apply to these tests. Your lawyer may successfully argue that these tests are inherently unreliable and provide no proof of impairment.

Your lawyer may also raise other issues that cast doubt on the validity of your roadside sobriety tests such as the fact that you were injured, suffered from a medical condition, were 50 pounds or more overweight or age 65 years or older.

Anthony J. Vecchio has both prosecuted and defended drivers charged with DWI in New Jersey. He knows how to identify problems that arise with field sobriety tests. If you have been charged with DWI, you can count on him to use his knowledge and experience to protect your rights and aggressively defend you. Contact him today to learn more.






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