Non-Standard Field Sobriety Tests in New Jersey DWI Cases

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.

Romberg Balance Test

This test originated, and is still used, in neurological testing. The test subject must stand fully upright with their feet together, their back arched, their head forward, and their eyes closed for 30 seconds, without counting out loud. The officer observes the subject to see if they can maintain their balance and to see how closely they can determine the passage of 30 seconds. A person who sways too much might be deemed impaired, even though there could be numerous other reasons why a person might be unable to maintain perfect balance under such circumstances. New Jersey courts often accept this test, occasionally even referring to it as a “standard sobriety test.”

Hand Pat

The hand pat, or palm pat, test, involves extending one arm out, palm up, and then placing the other arm above it, palm down. The test subject is supposed to pat the lower palm with the upper palm, then rotate both hands 180 degrees and repeat, counting out loud. This test is difficult to explain, let alone perform.


In this test, the subject must tilt their head back and close their eyes, and then touch the tip of their nose with their left and right index fingers. A variety of factors other than intoxication could cause a person to miss their nose, to sway while standing in that position, or to otherwise appear to “fail” the test.

ABCs and Numbers

Sometimes, police will ask a person to recite the alphabet in some unusual fashion, such as backwards, or count in a similarly unexpected way. This supposedly tests a driver’s attention, but other factors ranging from unrelated cognitive issues to simple nervousness could affect their performance.

If you have been charged with alleged DWI based on a field sobriety test result, DWI lawyer Evan Levow can help you understand your rights, guide you through the court process, and work with you to prepare a strong defense for your case. Contact us today at (877) 593-1717 or online to schedule a free and confidential consultation with a member of our team.

More Blog Posts:

Evidence in New Jersey DWI Cases, Part 4: Field Sobriety Testing, New Jersey DWI Attorney Blog, February 19, 2018

What Statements by a New Jersey DWI Defendant Are, and Are Not, Admissible in Court? New Jersey DWI Attorney Blog, October 17, 2017

New Jersey DWI Defendant Challenges Alcotest Results and Officer’s Observations as Evidence at Trial, New Jersey DWI Attorney Blog, March 6, 2017

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