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.
That is a direct policy statement from NHTSA – the National Highway Traffic Safety Administration. NHTSA also specifically says that the field “tests” are not supposed to be used as direct evidence of guilt on the DWI allegations. Field tests are to be used as assessors of probable cause to arrest: whether the officer has enough information to reasonably believe that the motorist is under the influence of alcohol.
The “tests” are also specifically defined only for alcohol. NHTSA has not validated these exercises for marijuana or any other drugs, yet the tests are often used to assist in forming an opinion of drug-based intoxication.
These exercises really shouldn’t be called “tests”. No one studies for these. They are balance exercises that are done road-side, under difficult conditions, such as traffic passing by, being close to the roadway, flashing lights distracting the subject, various kinds of weather, being performed at odd times of the day or night after the subject has been awake for varying periods of time, with the subject wearing different types of footwear, and the motorist potentially suffering from any number of physical issues that might affect balance.
The “tests” require that instructions be given exactly according to protocol, and that certain specific factors be used by the officer to score the exercise. If the instructions are not given exactly as required, or if the scoring is not done according to protocol, then NHTSA states that the reliability and validity of the testing is compromised. At that point, the information provided by the testing is no better than a flip of a coin to determine whether the person is under the influence of anything, other than a bad back, flat arches or some other physical issue.
If a person cannot do these exercises at 10 am on a Tuesday morning on a yoga mat, how can they be done at 1 a.m. after working or taking care of others for a full day, — done on the side of a road, varying temperatures, gravel on the uneven surface of the roadway, with back pain?
When reviewing your case with an attorney, make sure that attorney has training in the field sobriety testing issues. If the New Jersey DWI attorney understands the field testing issues better than the officer, prosecutor and judge, you will have a better chance at defending that part of your case.