UPDATED SEPTEMBER 26, 2019

Article by Daniel A. Levy, Esq.

A significant portion of my practice involves defending those accused of driving while intoxicated. As such, I am very familiar with what New Jersey law enforcement typically does when they suspect that a person may be guilty of DUI/DWI. I am not writing this article to encourage people to drink and drive – drunk driving is very dangerous and a serious problem in New Jersey. However, there are many people who are not intoxicated but they get charged anyway due to the way that they conduct themselves during a field sobriety test. Below I discuss the typical procedure, how innocent people could inadvertently incriminate themselves by failing the tests, and how to beat those tests and avoid a ticket.

First, remember that tickets for DUI in New Jersey are very serious. There is a policy that prohibits the prosecutor for dismissing or downgrading almost all DUI tickets. A guilty plea or conviction will result in mandatory suspension, significant fines, and in many cases an ignition interlock device on your vehicle. With that in mind, this is something that should be taken very seriously. Drivers in New Jersey should understand their rights and how to handle themselves when pulled over. I discussed this in my prior article, What To Do If You Are Pulled Over.

The basic procedure was developed by the National Highway Traffic Safety Administration, and they actually publish what is included in the Standardized Field Sobriety Test. The link will give you guidance about the specific procedures for the Horizontal Gaze Nystagmus (“HGN”) Test, the Walk-and-Turn Test, and the One Leg Stand, which are the three standard tests in all field sobriety investigations. Something to keep in mind is that these tests were developed and tested to identify drunk drivers – they are only about 80% accurate when alcohol is involved and they have not been scientifically tested for accuracy in cases regarding non-alcohol intoxication (drugs, medication, etc.). You should also keep in mind that if the officer asks to perform the tests, it is because they already believe that you are intoxicated and they will look for every deviation from the tests to document as evidence of intoxication.

There is no magic way to beat these tests, to be sure. But there are several ways that a person who is completely innocent can cause themselves to fail them. First and foremost, pay very close attention to the instructions. Very often the driver is nervous and not really paying attention to the officer’s instructions. Almost always, police reports indicate that the person failed to do the test according to the officer’s instructions. Misunderstanding the instructions could easily cause you to fail the test. The officer will demonstrate what they want you to do, so make sure to pay attention and copy what the officer does (when asked to), exactly. Also, if you are not sure about how to perform the test, ask the officer before starting. Second, do not start the test until the officer tells you to. Frequently, the driver is anxious to prove that they are not intoxicated and start the test early. Never do that – this is considered “evidence” of intoxication. The same is true for doing the test too long or doing too many repetitions (i.e. not following instructions). Third, you are never allowed to use your arms for balance, or sway, when performing the tests. If you have some kind of medical condition that makes it difficult when sober to balance, stand on one leg, or walk in a straight line, you absolutely must let the officer know. Lastly, relax! One of the indicators that the officer is looking for when performing the tests is eyelid and body tremors, muscle tension, etc. While such things could be caused by intoxication, they could also be due to nervousness, fear, a medical condition, dehydration, hunger, and other causes. It is therefore important to relax before doing each test.

To be clear, a legitimately drunk driver will likely fail these tests. But nervousness, anxiety, and miscommunication could also cause innocent people to fail them.