Arrest and Processing

Info Points on Field Sobriety Tests

1. Are the field sobriety tests always reliable?

In many DWI cases the field sobriety tests are simply not reliable. The two major proofs that the prosecutor relies on in a DWI case are the breath results, and the defendant’s performance on the field sobriety tests. The field sobriety tests are recorded on a drinking report. This is a type of a police report. The form varies for each individual Police Department. In healthy people the one legged stand is only accurate 65% of the time in predicting that a defendant’s BAC is over the .08% limit. Moreover, the walk and turn test is also only accurate 68% of the time. At your DWI trial, your DWI lawyer should strongly argue that the field sobriety tests are not reliable, and that they are inaccurate in 32% of the cases.

There are also numerous field sobriety tests that are referred to as non-standard tests. Some of these field sobriety tests have no standards of administration that police officer’s follow. These non-standard tests include the alphabet recitation test, finger-to-nose test, finger-touch test, and the sway test. These tests have no established standards of validity. All of these non-standard tests are not valid. However, at any DWI trial the police officer(s) may still testify using these tests as evidence of intoxication. The federal government (NHTSA) does not recognize these tests as credible proof that a defendant is intoxicated.

2. If I am forced to have a DWI trial, how can I discredit the reliability of the field sobriety tests?

If you are arrested for a DWI, and if you have failed the field sobriety tests, then you will need to strongly contest their reliability and accuracy at your trial. It is important to keep in mind that there is a strong inertia to convict a defendant in a DWI case. When you go trial for a DWI in New Jersey you might as well wear a devil outfit and bring a pitch fork with you. Thus, you have to bring your A-game and be creative in any DWI case. There are several different areas wherein you can attack the reliability of these tests;

A. Nervousness – Getting stopped for a DWI can be a nightmare, and it can be an extremely nerve racking experience. At trial, you can allege that you were simply too nervous to understand the police officer’s instructions. Moreover, you can also argue that you were too nervous to take the tests.

B. Lack of Coordination – The field sobriety tests are very difficult to take even if you are completely sober. The police officers really try to make you fail these tests. You really have to be in decent shape to perform these tests. A defendant can argue that he is not athletic enough or coordinated enough to adequately perform these tests. Moreover, a defendant can cite prior injuries or medical conditions that could impair his ability to adequately perform these tests.

C. Poor English – There is a major trend in the case law that the police officer(s) must advise a defendant of his legal rights in his own language. In refusal cases the police must read the DMV Article 36 Statement in Spanish if the defendant can’t speak English. A defendant simply can’t successfully perform the field sobriety tests if he does not understand the instructions. Thus, if a defendant speaks poor English then he can argue that he did not adequately complete the field sobriety tests because he could not adequately understand the instructions.

D. Complexity of instruction – The arresting police officer must also provide the defendant with instructions and a demonstration of the field sobriety tests. Quite often the police officer will “wing it” and not provide complete instructions. If you want to raise this point, then you will have to provide expert testimony to the court by a DWI Consultant.

3. I was just stopped for a DWI. Is a driver legally obligated to consent to take the field sobriety tests?

In New Jersey there is no legal requirement that you must take the field sobriety tests if you are pulled over for a DWI. You can advise the police officer that you simply refuse to take the field tests. However, the police officer can still arrest you for a DWI based on his own personal observations. The observation evidence can include your demeanor, the smell of alcohol, whether you were cooperative or belligerent, your posture, your manner of speech, nervousness, etc.  Keep in mind that you are legally required to take a breath test. If you don’t take the breath test, then you can be charged with a refusal charge. In summary the field sobriety tests are voluntary tests. Meanwhile, the breath tests are mandatory. If a defendant refuses to take the field sobriety tests, then the defendant can still be arrested for a DWI based on the police officer’s observations.