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.
The defendant in the 2019 Appellate Division case was convicted of DWI based on testimony about FST performance, the smell of alcohol, and their behavior during and after the arresting officer’s investigation. The arresting officer had her perform the single-leg-stand and walk-and-turn FSTs. In both cases, he testified that she did not follow his directions and could not maintain her balance. He also testified that the defendant had a limp, and that she denied having any medical conditions that could affect the FSTs. The officer described her behavior as “agitated,” including a claim that, at the police station, “she slammed her hands down on the desk and swiped at [him].”
The defendant argued that several medical conditions accounted for her poor FST performance. She presented expert testimony from an emergency room doctor, but the courts did not find it convincing. The doctor never examined the defendant directly. He based his testimony on a review of her medical records. He testified that he “could not state within a reasonable degree of certainty” whether the defendant’s medical conditions were a factor in her performance on the FSTs.
The testimony by the defendant’s expert witness had to compete with the police officer’s account of the defendant’s demeanor. The municipal court and the Law Division found the officer to be credible and discounted the defendant’s witness. The Appellate Division affirmed the Law Division’s ruling.
DWI lawyer Evan Levow has dedicated his law practice to defending people against alleged DWI charges in New Jersey courts, including charges based on field sobriety testing. To schedule a free and confidential consultation to discuss your rights and options, please contact us today online or at (877) 593-1717.