Articles Posted in Field Sobriety Testing

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New Jersey allows the state to prove driving while intoxicated (DWI) by having police officers testify about a defendant’s behavior or appearance. They may ask a defendant to participate in field sobriety tests (FSTs), which can supposedly demonstrate impairment. Unlike breath testing, FSTs are not mandatory under New Jersey law. If you agree to perform FSTs during a traffic stop, and the police arrest you for DWI, you may be able to challenge the evidence based on a variety of factors. A DWI lawyer can advise you about which defenses might be available to you.

What Field Sobriety Tests May New Jersey Police Use?

Police in New Jersey have official approval for three FSTs. They may use other tests as well, but anything other than the officially approved tests does not have any scientific support behind it.

Officially Approved Tests

Three FSTs have at least some scientific support as ways to detect intoxication or impairment. Their reliability is still a matter of much dispute.
– One-Leg Stand (OLS): You must stand straight, with your arms at your side, and lift one leg about six inches off the ground for thirty seconds.
– Walk-and-Turn (WAT): You must walk heel-to-toe in a straight line for nine steps, counting each step out loud. You must then turn around and return to the starting point with nine more heel-to-toe steps.
– Horizontal gaze nystagmus (HGN): This is the most controversial of the three official tests. The officer will hold a pen or other object in front of your face. You must follow the object with your eyes, without moving your head. The officer is looking for involuntary eye movements that allegedly indicate impairment.
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New Jersey law gives police and prosecutors several methods for proving guilt in driving while intoxicated (DWI) cases. Every driver on New Jersey roads must submit to breath testing if a police officer asks them to do so after arresting them on suspicion of DWI. Police must have probable cause to make an arrest before they can conduct mandatory breath testing. They may ask a person to perform field sobriety tests (FSTs) at the scene of a traffic stop. Unlike breath testing, state law does not require drivers to submit to FSTs. What happens, though, when a driver refuses an officer’s request to perform FSTs? Read on to learn more about what might happen in this situation.

New Jersey Law Does Not Require Participation in Field Sobriety Tests

Police must have probable cause to suspect DWI before they may arrest you or require you to submit a breath sample. The Fourth Amendment establishes the probable cause requirement for an arrest. The statute that defines the offense of refusal to submit to breath testing sets out three requirements:
– An officer had probable cause to believe that a person committed DWI.
– They placed the person under arrest.
– The officer requested a breath test, and the person refused.

FSTs appear nowhere in the DWI statute or the refusal statute. They are merely one of several methods police officers may use to assess whether a person appears to be under the influence of drugs or alcohol.
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The state has the burden of proving guilt in New Jersey driving while intoxicated (DWI) cases. This is a difficult burden to meet. A DWI lawyer’s job, in part, is to challenge the reliability of the methods that prosecutors may use to prove that a defendant was under the influence of alcohol or drugs. Many of the tests that police use are not as reliable as the public might think. A person can fail a field sobriety test for numerous reasons besides intoxication, for example. Breath testing devices can be highly unreliable without careful maintenance and operation. Before prosecutors can introduce evidence based on an unfamiliar scientific process or device, New Jersey courts require evidence that this process or device has the scientific community’s acceptance. This is known as the Frye standard. Several types of evidence used in New Jersey DWI cases have faced the Frye standard over the years.

What Is the Frye Standard?

The Frye standard gets its name from a 1923 decision by the D.C. Circuit Court of Appeals. It applies to methodologies, processes, or devices that courts have not encountered before. In order for evidence based on a new device or process to be admissible, the party introducing it must show that it has “general acceptance in the particular field in which it belongs.”

Many jurisdictions have abandoned Frye because it imposes such a stringent standard of proof. New Jersey courts still use it for criminal and motor vehicle offenses.

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The Bill of Rights and New Jersey law protect various rights of drivers suspected of driving while intoxicated (DWI). Knowing your rights may help you make informed decisions about what to do — and what not to do — if the police pull you over. Violations of your legal or constitutional rights by police could give you defenses that you can raise in court. The following is an overview of your rights during a New Jersey DWI investigation.

The Right to Freedom from “Unreasonable Searches and Seizures”

The Fourth Amendment prohibits police from searching a person or their property, seizing property, or detaining a person without a warrant issued by a court. Many exceptions to this rule exist, but police must demonstrate that an exception applies.

Police Must Have Reasonable Suspicion to Stop Your Vehicle

When a police officer pulls your car over on the road, they must be able to show that they had a reasonable basis for suspecting a traffic violation or other offense, such as if they witnessed you running a stop sign or driving erratically.
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Police and prosecutors have several ways to prove that a person was impaired by alcohol in driving while intoxicated (DWI) cases. New Jersey law requires any driver to cooperate with some of these methods, such as breath testing. Other methods are not mandatory, but refusal to cooperate could work for you or against you if your case goes to court. Field sobriety tests (FSTs) provide police with circumstantial evidence that you were under the influence of alcohol or another substance at the time they pulled you over. Nothing in state law requires you to perform FSTs when asked by a police officer. The reliability of FSTs is questionable at best, so if you agree to perform them, an experienced DWI defense attorney can help defend you against whatever prosecutors claim the tests established.

What Are Field Sobriety Tests?

FSTs are a series of physical tests administered by police officers when they suspect that a person is under the influence of alcohol or drugs. Police will often ask a person to perform FSTs when they suspect DWI but are not certain that they have enough probable cause for an arrest. Flawless performance on FSTs is unlikely to result in police deciding not to arrest you, because a police officer has usually already made up their mind about an arrest when they ask you to perform FSTs.

The National Highway Transportation Safety Administration (NHTSA) has approved three standardized FSTs, which are commonly accepted by New Jersey courts:
1. Horizontal gaze nystagmus (HGN): An officer asks the person to look at a stimulus, which could be their finger, a pen, or another object, and to follow it with their eyes without moving their head. The officer is looking for involuntary eye movements, known as nystagmus, which are supposedly a sign of intoxication.
2. Walk-and-turn: The officer instructs the person to walk a straight line, heel-to-toe, for nine steps, and then to turn around and take nine more heel-to-toe steps back to where they started.
3. One-leg stand: The person must stand with one foot raised about six inches off the ground, counting out loud, until the officer tells them to stop.
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Police in New Jersey often ask individuals suspected of driving while intoxicated (DWI) to perform field sobriety tests (FSTs), which allow officers to look for supposed signs of intoxication. Of the three standard FSTs used by New Jersey law enforcement, two are based entirely on the ability to maintain balance. Various injuries and medical conditions can also affect performance on these tests. It is possible for a defendant charged with DWI to produce evidence about an injury or illness to challenge an officer’s testimony about FST performance, although this is usually not the only evidence of intoxication the state will offer. In early 2019, the New Jersey Superior Court, Appellate Division ruled on a New Jersey DWI case with this kind of challenge.

The DWI statute requires proof that a defendant was either “under the influence” of alcohol or drugs or had a blood alcohol concentration (BAC) of 0.8 percent or higher. Prosecutors often introduce evidence of both, for good measure. If a person refuses or is unable to submit a breath sample for BAC testing, prosecutors must rely on evidence that a person was “under the influence.” A 1975 decision by the New Jersey Supreme Court established that this term means “a substantial deterioration or diminution of the mental faculties or physical capabilities of a person” caused by alcohol or another drug.

In 2006, the state supreme court ruled that expert testimony, such as by a physician or other medical professional, is not necessary to demonstrate the “influence” of alcohol or drugs. Testimony from police officers who witnessed a defendant’s behavior and appearance can, by itself, sustain a conviction for DWI. This might include testimony about slurred speech or bloodshot eyes, the odor of alcohol, or swaying or stumbling during the FSTs. A defendant with a health condition that could impact their FST performance, on the other hand, usually must present expert testimony.

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Police in New Jersey have many ways to build a case for driving while intoxicated (DWI). They can establish probable cause for an arrest by instructing a suspect to perform field sobriety tests (FSTs). A “perfect” performance on FSTs is essentially impossible and is unlikely to help someone avoid arrest regardless. Defending against New Jersey DWI charges that include alleged failed FSTs means challenging whether police officers correctly administered the tests. A Pennsylvania town recently sought volunteers for an unusual form of police training. New Jersey police have not yet asked for volunteers to get drunk so officers can practice administering FSTs, but the outcome of the Pennsylvania training may change that.

State law allows prosecutors to make a case with evidence of impairment besides blood alcohol content (BAC). The DWI statute defines the offense, in part, as driving a motor vehicle “while under the influence” of alcohol or drugs. Eyewitness testimony from officers, including FST performance, is often the main evidence presented by the state.

The National Highway Traffic Safety Administration (NHTSA) has established a set of standardized FSTs that most states have adopted. The set of standardized FSTs consists of three tests:
1. One-Leg Stand: The suspect must raise one foot about six inches off the ground and hold it there.
2. Walk and Turn: The suspect must walk a straight line, keeping their heel to their toe with each step, for a total of nine steps. Then, they must turn 180 degrees and repeat the process until they return to the starting point.
3. Horizontal Gaze Nystagmus: The officer holds a pen or other object at a constant distance from the suspect’s face while moving it from side to side. The suspect must follow the object with their eyes without moving their head. The officer is looking for involuntary eye movement, known as nystagmus, supposedly associated with intoxication.

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In prosecutions for alleged driving while intoxicated (DWI) in New Jersey, the state must prove each element of the offense beyond a reasonable doubt. Municipal court judges determine whether prosecutors have met their burden of proof when a case goes to trial. Last year, the New Jersey Appellate Division considered a defendant’s claim that a police officer’s failure to record video of her field sobriety tests (FSTs) should weigh in her favor. The court’s ruling in State v. Belko is a reminder that New Jersey gives prosecutors rather wide latitude in the types of evidence they may use in DWI cases.

The New Jersey DWI statute allows prosecutors to prove impairment by demonstrating that a defendant had blood alcohol content (BAC) of at least 0.08 percent, or by showing other evidence that they were “under the influence” of alcohol, narcotics, or other drugs. This could include a defendant’s performance on FSTs, their appearance or demeanor, or testimony from an officer trained in drug recognition.

Municipal judges must weight the credibility of eyewitness and expert testimony in DWI trials. This often requires subjective determinations of how a witness appears in court. As video recording becomes increasingly common, thanks in part to near-ubiquitous smartphones, more and more arrests and other incidents are recorded by one or more people. These videos sometimes serve to challenge the official story from one (or both) sides. Video evidence is often admissible in court, but the Belko case addressed the question of whether video evidence should be required.
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New Jersey’s driving while intoxicated (DWI) law allows police and prosecutors to establish that a person was legally impaired by alcohol or drugs in a variety of ways. This includes testimony from arresting officers about a defendant’s appearance and behavior, such as an odor of alcohol, bloodshot eyes, slurred speech, and so forth. Police may ask a driver to perform one or more field sobriety tests (FSTs) in order to assess their condition and establish probable cause for an arrest. The federal government has recognized three “standard” FSTs, but New Jersey police may use other tests in DWI investigations. New Jersey courts may accept those tests as evidence, even though their reliability is highly questionable.

Standard Field Sobriety Tests

The National Highway Traffic Safety Administration (NHTSA) has established a Standardized Field Sobriety Test (SFST) battery consisting of three tests. Each test has standard instructions for police officers to deliver to drivers, as well as objective factors that indicate the possibility of impairment. At the same time, each test has serious shortcomings that make their reliability above average at best. The three tests are the “one-leg stand,” the “walk and turn,” and the horizontal gaze nystagmus (HGN).

The non-standard FSTs do not have these sorts of objective indicators. Instead, they rely to a great extent on the individual officer’s interpretation of how an individual performs. New Jersey courts may still accept non-standard FSTs as evidence, but they should not give them nearly as much weight as the SFST battery.
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In cases involving alleged driving while intoxicated (DWI) in New Jersey, prosecutors must prove all of the elements of the offense beyond a reasonable doubt. The New Jersey DWI statute states that a person commits an offense when they operate a vehicle “while under the influence” of drugs or alcohol. Prosecutors can prove this through testimony, such as by having the arresting officer testify about their observations of the defendant’s appearance or behavior, or through the defendant’s performance on field sobriety tests (FSTs). New Jersey evidence rules govern the ways prosecutors may introduce evidence of defendants’ performance on these tests at trial.

Accepted Field Sobriety TestsThe National Highway Traffic Safety Administration (NHTSA) has created standard procedures for three FSTs. New Jersey courts accept the use of two of the three tests in DWI investigations: the “One Leg Stand” and the “Walk and Turn”. HGN has not been held relaible to measure or check for intoxication, since there are 40 or more other causes of nystagmus in addition to intoxication.

– The “walk and turn” test involves taking nine heel-to-toe steps along a straight line, and then turning and taking nine heel-to-toe steps along the same line, back to the starting point. Officers look for whether the person maintains their balance, stays on the line, and maintains heel-to-toe contact.

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