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Rick DeMichele

Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.

Defending Against Standardized Field Sobriety Testing

walk and turn testField sobriety tests are common place whenever someone is suspected of DWI.  In fact, except where the suspect is injured in an automobile accident and needs medical attention, field sobriety tests are normally administered shortly after the police arrive on the scene. The Standardized Field Sobriety Test (SFST) is the form of test administered by law enforcement when a person is under suspicion of DWI or DUI. The performance of the tests are evaluated in a standardized manner n order to obtain validated indicators of impairment and ultimately establish probable cause (“PC”) for a DWI arrest. There are plenty of urban legends out there concerning what constitutes a proper field sobriety test. Significantly, in New Jersey, only field sobriety tests developed by the National Highway Traffic Safety Administration (NHTSA) can be used by the municipal prosecutor to obtain a DUI Conviction. The officer conducting the field sobriety test must successfully complete formal training.  The NHTSA provides formal training to law enforcement to ensure that the arresting officer is skilled at detecting DWI suspects, describing the behavior of suspects, and presenting effective testimony in court. The three recognized Standardized Field Sobriety Tests are:
  • Horizontal Gaze Nystagmus (HGN),
  • Walk-and-Turn (WAT),
  • One-Leg Stand (OLS).
These tests are required to be administered systematically and are evaluated according to measured responses of the suspect.  Other so-called field sobriety tests are not reliable and should not be admitted in court as evidence to convict a person of DWI. Common examples of Non Standardized Field Sobriety Tests which you may have heard of are finger-to-nose tests, reciting the alphabet and finger counting. HGN Testing Horizontal Gaze Nystagmus is an observational test which measures jerking of the eye that occurs naturally as the eyes look from side to side. Under is normal circumstances, the nystagmus “jerking” can be seen when the eyes are looking at the extreme edge of sight. Alcohol can cause the nystagmus to be exaggerated or choppy and may occur at lesser angles. Someone who is alcohol-impaired can have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as they follow a moving object from left to right and right to left.  The object used to conduct the test could be a pen or small flashlight. The officer is trained to look for three indicators of impairment in each eye. An indicator of impairment can be any of the following:
  1. The eye cannot follow a moving object smoothly,
  2. Jerking is distinct when the eye is at maximum deviation,
  3. The angle of onset of jerking is within 45 degrees of center.
If four or more clues appear between both eyes, the person likely has a BAC of 0.08 or greater. According to the NHTSA, its test allows proper classification of approximately 88 percent of suspects.  However, the HGN test by itself is not enough to convict a person of DWI in New Jersey but it can provide probable cause for a DWI arrest.  It should also be noted that according to the NHTSA, HGN can indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants. Walk and Turn In the Walk-and-Turn test, the officer instructs the suspect to take nine steps, heel-to-toe, along a straight line. The suspect must then rotate 180 degrees and walk back heel to toe. The officer is looking for eight “indicators of impairment.” The “indicators of impairment” are if the suspect:
  1. Cannot keep balance while listening to the instructions,
  2. Begins before the instructions are finished,
  3. Stops while walking to regain balance,
  4. Does not touch heel-to-toe,
  5. Steps off the line,
  6. Uses arms to balance,
  7. Makes an improper turn,
  8. Takes an incorrect number of steps.
According to a NHTSA study, 79 percent of people who exhibit two or more indicators are impaired. This assumes the person does not have any physical or medical impediments. One Leg Stand In the One-Leg Stand test, the suspect is told to stand on one foot while simultaneously raising the other foot approximately six inches off the ground. Then, while the one foot is raised off of the ground, they are instructed to count aloud by thousands until told to put the foot down. Although the suspect is not told how long the test is supposed to last, the test is administered for 30 seconds. Similar to the walk and turn test, the officer looks for “indicators of impairment.” IThis test looks for four indicators of impairment:
  1. Swaying while balancing,
  2. Using arms to balance,
  3. Hopping to maintain balance,
  4. Putting the foot down.
According to the same NHTSA study referenced above, 82 percent of people who exhibit two or more indicators are impaired.  This test, similar to others discussed above, assumes the person being tested does not have any physical or medical impediments. Summary Challenging field sobriety tests is just one aspect to a complete DWI defense. We’ve outlined or alluded to some of the possible ways to attack a sobriety test in this post.If you or a loved one needs strong representation in a municipal court in New Jersey, please contact the DWI defense lawyers at DeMichele & DeMichele today. We are here to defend the charges against you. Contact us now for your confidential and free initial consultation. You can also reach us by telephone (856) 546-1350. Don’t just plead guilty and risk your driving privilege or driving record.  
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Rick DeMichele
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Rick DeMichele

Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.
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