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.
Non-standardized FSTs include touching one’s finger to one’s nose, reciting the alphabet, and the Romberg balance test. This last test involves standing with feet together, tilting the head back, and estimating the passage of 30 seconds. Swaying, moving the feet, or counting too quickly or slowly could be construed as “failing” the test, which is why it seems designed to fail.
The New Jersey Superior Court, Appellate Division ruled in State v. Doriguzzi in 2000 that the HGN is inadmissible as evidence of guilt. The court held that HGN is “so esoteric that it is beyond the ken of the average person,” and that it therefore requires expert testimony to establish its scientific accuracy. While HGN results are not admissible to prove guilt, however, they may be admissible as circumstantial evidence or to establish probable cause for an arrest.
You should consult with a skilled and knowledgeable DWI attorney if you are facing a charge of alleged driving while intoxicated in New Jersey. At Levow & Associates, we have committed 100% of our law practice to defending the rights of DWI defendants. To schedule a free and confidential consultation with a knowledgeable and skilled advocate, contact us online or at (877) 975-3399.
More Blog Posts:
How Does the State Prove “Intoxication” in New Jersey DWI Cases Involving Drugs Instead of Alcohol? New Jersey DWI Attorney Blog, August 26, 2014
Courts Change Procedures for Issuing Warrants After Supreme Court Limits Warrantless Blood Testing of DWI Suspects, New Jersey DWI Attorney Blog, July 2, 2014
Roadside “Exercises” – Field Tests in New Jersey DWI Arrests, New Jersey DWI Attorney Blog, August 4, 2010