Field Sobriety Testing

August 26, 2014

How Does the State Prove “Intoxication” in New Jersey DWI Cases Involving Drugs Instead of Alcohol?

The criminal offense of driving while intoxicated (DWI) is most often associated with alcohol, hence the term “drunk driving.” It is also an offense under New Jersey’s DWI statute to operate a motor vehicle while under the influence of certain other drugs. While the statute determines the severity of a DWI offense involving alcohol based on several levels of blood alcohol content (BAC), it provides no similar guidance for other drugs. Courts have generally held that expert testimony is required to prove intoxication by certain types of drugs.

New Jersey’s DWI statute defines the offense, in part, as driving “while under the influence of intoxicating liquor, narcotic, hallucinogenic, or habit-producing drug,” or with a BAC of 0.08% or higher. The statute creates two tiers of alcohol intoxication for first offenders. The first tier includes people with a BAC of at least 0.08 percent but less than 0.10 percent, and the second tier includes people with a BAC of 0.10 percent or higher. The second tier also includes anyone under the influence of a “narcotic, hallucinogenic, or habit-producing drug,” regardless of the amount.

Breath tests are not effective at measuring the amount of drugs, as covered by the DWI statute, in a person’s blood stream. Police generally rely on blood or urine tests. Under New Jersey’s implied consent statute, anyone who drives on a public street or road within the state consents to giving samples of breath, blood, or urine for the purposes of enforcing the DWI statute. New Jersey courts have held that chemical test results, expert testimony, and layperson testimony are all relevant to the question of whether a person is “intoxicated” due to drugs. Continue reading

July 2, 2014

Courts Change Procedures for Issuing Warrants After Supreme Court Limits Warrantless Blood Testing of DWI Suspects

by Evan M. Levow

A decision issued by the U.S. Supreme Court last year limits the ability of police to take a blood sample from a DWI suspect without consent or a warrant. Missouri v. McNeely, 133 S.Ct. 1552 (2013). The Fourth Amendment protects people from unreasonable searches and seizures, and generally requires law enforcement to obtain a warrant before searching private property. Police can claim “exigent circumstances” to justify a warrantless search, meaning that in a specific emergency situation, they cannot take the time to obtain a warrant. The McNeely case addressed claims by police that the human body’s process of metabolizing alcohol was an exigent circumstance that justified taking a blood sample without a warrant. In response to the decision, the New Jersey Supreme Court has modified its procedures for search warrant requests to ensure that judges are available to issue warrants.

The defendant in McNeely was stopped by a highway patrolman for speeding. The officer claims that defendant did not perform well in a field sobriety test, and he refused a breath test. En route to the police station, the defendant refused a breath test again, so the officer diverted to a hospital and directed a hospital technician to take a blood sample. The defendant did not consent to having blood drawn, and the officer did not obtain a warrant. Lab testing showed blood alcohol content (BAC) of 0.154 percent, almost twice the legal limit of 0.08 percent.

The state charged the defendant with driving while intoxicated, but the court granted the defendant’s motion to suppress. It held that the warrantless blood test violated his Fourth Amendment rights. When the Missouri Supreme Court affirmed the decision, the U.S. Supreme Court took the case in order to resolve a conflict with its own prior decision in Schmerber v. California, 384 U.S. 757 (1966). That case held that an officer might reasonably conclude that the breakdown of alcohol in the bloodstream constituted “exigent circumstances,” id. at 770-71, but limited its holding to the specific circumstances of the case. In McNeely, the court rejected establishing a “per se rule” that alcohol metabolism justifies a warrantless blood test. 133 S.Ct. at 1561. Continue reading

August 4, 2010

Roadside “Exercises” – Field Tests in New Jersey DWI Arrests

by Evan M. Levow

As a lawyer in New Jersey that practices only DWI defense, I am often amazed at the emphasis that judges place on field sobriety testing in court.

The reality is, according to the government’s own statistics, the roadside exercises are at best 68% reliable in predicting someone to be over the legal limit to operate a car.