When police in New Jersey suspect someone of driving while intoxicated (DWI), they may ask them to take a field sobriety test (FST) before placing them under arrest. A person could “fail” FSTs for any number of reasons besides intoxication, such as injury, weather conditions, or even just standing on a slope. Challenging an officer’s administration of a test, which can significantly affect its outcome, can be extremely beneficial to a defendant’s case. As the first New Jersey lawyer qualified by the National Highway Traffic Safety Administration (NHTSA) to train law enforcement officers to administer FSTs, Evan Levow is in a unique position to assist defendants in DWI cases.
Many people believe that “passing” the FST will allow them to avoid being arrested, but most of the time, police have already made that decision. They usually hope that FST results will provide additional probable cause for the arrest, or that they will serve as circumstantial evidence of intoxication if chemical testing does not provide useful results. The state will try to show that any difference between how an officer explains a test and how a driver performs on it is evidence of impairment. The officer must follow specific guidelines for administering certain FSTs, however, and an error on the officer’s part could invalidate the entire test.
The NHTSA’s Standardized Field Sobriety Test (SFST) consists of three tests, with specific instructions for officers and a scoring system:
– One Leg Stand, in which the officer looks for impaired balance. The driver is instructed to stand with one foot about six inches above the ground while counting aloud, usually for 30 seconds.
– Walk and Turn, which also looks at balance as well as coordination and attention to instructions. The driver is instructed to walk heel-to-toe along a straight line, turn on one foot, and return along the same path.
– Horizontal Gaze Nystagmus (HGN), which refers to the involuntary jerking motion of a person’s eyes during side-to-side movement. The officer might tell a driver to look at the tip of a pen or other object, then follow it back and forth with their eyes. The theory is that HGN will be faster or more pronounced in intoxicated people. New Jersey courts do not allow use of the HGN test as evidence of guilt, as discussed more below. Continue reading →