Ocean Township DWI Lawyers
- Rescinio, Albert :
Field Sobriety Testing
Often misunderstood field sobriety testing is used by police officers
to establish probable clause to arrest a potential suspect for driving
while intoxicated to administer a breathalyzer to determine whether a
per se violation (.10 BAC ) has occurred. However, field sobriety
testing can also be used to convict an individual of driving while
intoxicated without the establishment of a per se violation. Thus, the
examination and understanding of field sobriety testing is of paramount
importance because the defendant must not only defeat the breath test
result but also the officers subjective interpretation of the field
sobriety tests.
Psychophysical tests should require not only the evaluation of a
person's appearance and condition but also their ability to follow
instructions, balance, and coordination. Generally, tests require the
individual to concentrate on more than one thing at a time thus
dividing their attention between mental and physical tasks. The reason
this is done is because scientific studies have shown that individuals
under the influence generally cannot perform both tasks simultaneously.
Certain tests have been approved by the National Highway Traffic Safety
Administration (NHTSA) for use in establishing whether an individual
has been driving while intoxicated. These tests are the Horizontal Gaze
Nystagmus (HGN), the walk and turn, and one leg stand. There are no
other approved tests by the National Highway Traffic Safety
Administration including reciting the alphabet, touching your nose, or
any sway test. Additionally, the approved tests must be given by
trained individuals as taught. Failure to properly administrate the
tests should invalidate their use as their scientific reliability will
be impaired.
The HGN is performed using a penlight or pen. The officer has the
individual follow the movement of the pen without turning their head.
The purpose is to watch the eyes to determine when involuntary jerking
of the eye begins. The officer initially checks for smooth pursuit of
the eye. Score factors are given and if enough scoring factors are
accumulated, the individual is deemed to fail the test. While an
individual must be allowed to uses eyeglasses during the test hard
contacts must be removed. The test is generally performed several times
to clearly establish the point factor. Officers in New Jersey are
required to keep a log of all HGN performed and cannot rely on the test
until they have performed ten field tests.
The walk and turn test is required to be performed on a hard, dry,
level, non-slippery surface, preferably with a straight line clearly
marked on the ground and sufficient room for the individual to perform
at least nine heel-to-toe steps. Weather conditions including wind,
rain, and snow can affect the validity of the test as can non-level
surfaces, slippery surfaces, improper lighting, flashing lights,
absence of a straight line, a person's physical condition, persons
weight, and the type of shoe worn. People over the age 65, more than 50
pounds overweight, and those with physical impairments which affect
balance should not be given this test. Individuals wearing heels higher
than two inches should be required to remove their shoes prior to
taking the test. Individuals with depth perception problems also should
not be given this test.
The officer is required to give clear verbal instructions and
properly demonstrate what is required. It is imperative that the
officer make sure the individual understands the instructions
completely prior to engaging the individual to begin the test. The
actual first part of the test is the individual's ability to understand
and follow the instructions as given. The officer must give the
individual clear instructions to place the left foot on the line with
the heel of the right foot against the toe of the left. The officer
scores points for the individual's ability to follow the instructions
and maintain their balance while listening to the instructions and to
maintain their balance at the beginning of the test.
The individual is then instructed to take nine steps forward
placing each foot heel- to-toe. The officer having previously
demonstrated the procedure. The officer also will demonstrate and
inform the individual on the required method for turning. Generally,
the turn consists of the individual keeping one foot on the line and
taking several small steps to complete the turn. During this phase of
the test the individual is instructed to keep their arms at their side
and not to stop once they start walking. The officer will assess points
for failing to walk heel-to-toe, stepping off the line, taking
incorrect number of steps either forward or back, making an improper
turn, stopping, or raising the arms.
The one leg stand must be performed on a hard, dry, level, non
slippery surface. Proper lighting is required as abscence of proper
lighting deprives the individual of a visual frame of reference making
this test similar to a sway test. The officer must clearly explain the
instructions to the individual and demonstrate the procedure. Factors
as listed for the walk and turn test must be considered for the one leg
stand in determining which individuals can be given this test. There
are two separate parts to this test. The first part is the instruction
phase. The second part is the performance phase.
During the instruction phase the officer advises the individual to
stand with heels together and arms at their sides. The individual is
instructed not to begin the test until told. The performance phase
consists of balance and counting. The individual is instructed to stand
on either foot as preferred and raise the other foot approximately six
inches off the ground. The individual is instructed to maintain this
position and count out loud for 30 seconds by one thousands. The
individual is allowed to look at his foot while counting but must
maintain his arms at his sides. The individual is also instructed not
to hop or sway. Points can be assessed for swaying, using arms for
balance, touching their foot to the ground, or hopping.
The actual testing and training are more detailed than this
summary of the tests. However these are the approved tests as outlined
by the NHTSA and are the only tests which the officer should rely in
determining whether to arrest in individual for purposes of a
breathalyzer test and are the only tests for which the court should
rely in determining whether an individual has been operating a vehicle
while intoxicated. When
arrested for a DWI violation, an individual has a right to have
independent blood work conducted by a hospital or doctor. The right to
independent blood work as a potential defense for the DWI arrest is
extremely important.
Blood Alcohol Content (BAC) based upon a blood sample is far more
accurate and reliable than BAC based upon the use of a breathalyzer.
- Fox & Melofchik:
If you have been arrested for a crime, time is of the essence in contacting an attorney. Whether your crime involved a traffic violation, driving under the influence (DUI), felony drug trafficking, or any type of misdemeanor or felony crime, you need aggressive representation and protection of your rights.
- Barrett & Pavluk:
The penalties for a DUI conviction in New Jersey increase if you have
had multiple DUI convictions. If people have been injured or property
has been damaged, as in felony DUI, the penalties increase. Even for
the 1st drunk driving offense, the penalties include license
suspension, fines, mandatory treatment or prevention programs, and
possible jail time. For the 3rd offense, there is a mandatory 180 day
jail sentence, only 90 days of which may be spent in community service.
At any level, the court may require the installation of an interlock
device on your car.
Such penalties apply whether the charge was for drunk driving (DWI) or
for driving under the influence of controlled or illegal substances
(DUI). In addition to the legal consequences of a DWI charge, drivers
may face a rise in insurance rates. Our attorneys will vigorously
defend you against all types of DWI charges and other traffic matters,
including speeding tickets.
- Adam Weisberg:
If you are facing a charge of drunk driving (DUI), you could face
additional consequences, such as loss of you driver's license and
court-ordered alcohol treatment.
Serious criminal charges must beproperly and effectivelydefended.
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