Here is a common situation:
A person gets arrested for DWI. The officer who pulled the individual said he or she was crossing the double yellow line. The individual knows they did not. After asking the individual questions about drinking, they answer yes, they had 3 beers. The officer orders the individual to exit the vehicle. He then directed the individual to perform two tests which were standing on one leg and counting to 30 and walking heel to toe for 9 steps and then back.
After the individual does the tests, which they believe they did satisfactorily, the officer handcuffs the individual and takes him or her to the police station. At the police station, the officer directed the individual to blow into a machine which they refused to do.
Should the individual have also refused to have done the tests outside their vehicle?
This DWI issue above relates to the significance or lack of significance, relating to the performance of field sobriety tests before a police officer charges an individual with DWI. The first fact to point out was not arrested for DWI. DWI is not characterized as a crime or criminal offense in New Jersey. It is the only state in the country that does not criminalize some form of DWI in its statute. Therefore, the proper terminology is that the individual was charged with DWI and taken into custody.
The individual states that they answered the police officer’s questions honestly related to prior alcohol consumption. In this circumstance, that was a mistake. An individual who had been drinking and who is pulled over for a DWI investigation should not be honest with the police officer about prior alcohol consumption.
The police officer has no ability to determine what the driver was doing at any point prior to the officer’s first observation of the individual’s motor vehicle on the roadway. Once the individual admits to prior alcohol consumption, there is an overwhelming likelihood that the officer is going to charge that person with DWI. Consequently, an individual should never admit to prior alcohol consumption when asked by a police officer who is investigating them for drunk driving.
During an investigation for DWI, a police officer will always ask an individual to perform field sobriety tests. Most police officers are not certified to conduct what are known as the “Standardized Field Sobriety Tests.” These are Horizontal Gaze Nystagmus (HGN), the One Leg Stand, and the Walk and Turn test. These Standardized Field Sobriety Tests are promulgated by the National Highway Traffic Safety Administration (NHTSA). Rather, most police officers are given informal training at a police academy and on the job, which is not equivalent to the Standardized Field Sobriety Tests.
Therefore, most police officers administering field sobriety tests are merely subjectively using these tests to determine probable cause for charging an individual with DWI. It must be emphasized that officers who are not trained in the Standardized Field Sobriety Tests are not evaluating the tests with a prescribed set of objective evaluation criteria.
However, some police officers are trained in the Standardized Field Sobriety Tests as promulgated by NHTSA. If the officer has this specialized training, which requires a 5 day, 40 hour course and testing pursuant to the course description, the officer will always utilize the HGN, One Leg Stand, and Walk and Turn tests. These tests can only be objectively evaluated if they are administered in a standardized fashion.
A person cannot objectively successfully perform field sobriety tests unless these standardized tests are properly administered. Simply put, proper performance is dictated by proper administration of the tests. Even experienced police officers who are certified to conduct the Standardized Field Sobriety Tests fail to properly administer such tests. They take short cuts or forget or overlook the standardized instructions.
A top DWI attorney will immediately point out such deficiencies in discovery process of a DWI or on a videotape of the field sobriety tests provided during the discovery process. Very few DWI defense attorneys are certified in the Standardized Field Sobriety Tests. I became certified in such tests in 2002.
In the opinion of any expert who has ever seen me cross examine a police officer concerning field sobriety testing, no New Jersey defense attorney has ever cross-examined police officers concerning these tests than I have. Indeed a cross-examination that I conducted in a DWI trial in a Camden county municipal court in 2006 was actually used as the model for how cross-examine on HGN by another attorney in a Superior Court challenge to HGN.
In the scenario above, the individual felt that they had “satisfactorily” performed the field sobriety tests. There is no ability for a person to make such a conclusion unless they know the experience level of the police officer who is administering these tests. For instance, a police officer not trained in the Standardized Field Sobriety Tests has absolutely no ability to even evaluate a suspect’s performance on field sobriety tests.
The police officer would have no ability or frame of reference to even make such an evaluation. Therefore, the suspect actually performing the balance tests would have no ability to ever determine how the police officer is evaluating the field sobriety tests.
In the event that the police officer is certified in Standardized Field Sobriety Tests, the suspect would have no meaningful ability to determine their own performance unless they were also qualified in the proper administration of the Standardized Field Sobriety Tests.
The bottom line is that field sobriety tests are utilized by police officers in determining probable cause to charge an individual with DWI. In most cases, it is complete guess work on the part of the police officer who is actually administering these tests. The individual suspected of DWI is merely providing evidence against themselves by agreeing to perform the field sobriety tests.
There is no requirement that an individual requested to perform field sobriety tests is obligated to do so. There is no charge for failing to perform field sobriety tests. It simply does not exist. The individual being investigated for DWI feels that they are cooperating with the police by performing such tests. In actuality, the individual suspected of DWI is merely providing evidence against themselves.
Therefore, an individual being investigated for DWI should never perform field sobriety tests at the request of a police officer. Unless you are the world’s best drinker, or an Olympic gymnast, or a professional athlete, you are going to be charged with DWI after you perform these tests. I would than an intoxicated Olympic gymnast and an intoxicated professional athlete would probably also unsuccessfully perform the field sobriety tests. Let us reiterate the overall answer to this question: do not perform field sobriety tests when asked to do so by a police officer.
If you are facing a DWI charge in New Jersey, contact me at 732-625-9660.
