FAQ: NJ Drunk Driving Arrests and the Consequences of a DWI Conviction — Part Three

Life in the Garden State can be enjoyable and fulfilling, so long as everything is going well. For thousands of drivers every year, however, a run-in with a traffic enforcement officer can certainly be one of the reasons that makes daily life a bit less pleasurable. While most traffic stops result in some kind of moving violation and related fine, which isn’t cheap by any means, a fair number of roadway police stops end up in an arrest for impaired driving.

When it comes to being stopped for intoxicated vehicle operation, this kind of police encounter can make for an embarrassing trip to a local police department for a breath test and possible charges of DWI or DUI; after that comes a date in municipal court with sometimes very costly results. For many motorists charged with driving under the influence, there is hardly anything good to look forward to following a DWI-DUI arrest. With thousands of dollars in fines, fees and insurance premium increases hanging over the heads of accused drunk drivers, it’s no surprise that this kind of life event is far and away from anything remotely enjoyable.

As New Jersey drunk driving defense lawyers, my legal team has defended hundreds of individuals charged with impaired driving, breath test refusal and other alcohol-related offenses. In addition, my colleagues and I are well equipped to handle drug-related cases, such as marijuana DUI, cocaine possession, and prescription drug-related DUI offenses. It should be said that although we make it our job to defend individuals charged with DWI-DUI, we certainly do not condone driving under the influence of drugs or alcohol.

As we have said numerous times before, one the best ways to avoid a DWI or DUI is to simply abstain from any amount of alcohol before getting behind the wheel of a vehicle. The same goes for prescription drugs that have a narcotic effect or the otherwise could impair one’s operation of a motor vehicle. Find a sober friend, call a cab, or get a room is our suggestion if you find yourself in an inebriated state away from home. There is no sense in risking serious and costly legal penalties, not to mention danger to life and limb, simply because one has had a bit too much to drink.

As New Jersey DWI attorneys, we get a fair amount of questions from prospective clients who have been arrested and charged with drunk driving. To help fill in the blanks ahead of time, we have posted a number of Q&A entries to assist people in understanding the potential consequences of a DWI-DUI arrest and possible conviction. Considering the many and varied ways in which drivers can end up being stopped for a drunk driving offense, we obviously cannot cover all of the questions that could arise, but here are a few more questions and answers that may help to educate the public:

Q: Why did the police ask me to follow their finger moving left to right with my eyes?

A: What you experienced is the application of one of a number of standardized field sobriety tests known as the “horizontal gaze nystagmus” (HGN) test, used by patrolmen to decide whether or not a driver may be intoxicated by alcohol. The officer administering such a test using his finger (or sometimes a penlight during evening hours) will be looking for the point where the subject’s eyes begin to “jerk,” usually before the subject’s eyes reach 45 degrees to the left or right of a straight-ahead gaze.

The word “nystagmus” is a medical term associated with oscillation of one or both eyes. If nystagmus occurs sooner than the aforementioned 45 degrees, then this indicates (in theory) that the subject’s blood-alcohol concentration (BAC) is more than 0.05 percent. The smoothness with which the subject’s eyes track with the officer’s finger, pencil or penlight can also play a role in the determination of possible intoxication.

While relied upon by law enforcement along with other field sobriety tests, the horizontal gaze nystagmus test can present a number of problems for the state, one of which is that non-medically trained personnel may not have the skills to recognize accurately identify nystagmus or to estimate the angle at which it begins to take place. Interestingly, even though the HGN test is one of three standardized field sobriety tests recognized by the National Highway Traffic Safety Administration (NHTSA), it is not admissible in New Jersey courts as proof of guilt. Nevertheless, police throughout the state still use the test.

Q: What should I do if an officer requests that I take other field sobriety tests?

A: There are a number of field sobriety tests (FSTs) used by law enforcement all across the country. These include walking heel-to-toe, touching a finger to one’s nose, the so-called one-leg stand, recitation of the alphabet, modified position of attention (aka Rhomberg’s test), touching fingers-to-thumb, hand pat test, as well as the horizontal gaze nystagmus test and others. Not all of these are part of the standardized field sobriety tests recommended by the NHTSA.

As far as whether one may refuse to take these tests, unlike refusing a breathalyzer test New Jersey motorists are not legally required to take any FST. As such, there is no legal charge with which the police can file against a driver for refusal to take an FST. Unfortunately, while refusing to take an FST is a right that a motorist has, usually when a police officer has gotten to the point of requesting a person to take a field sobriety test, he or she is likely often of a mind to arrest that individual regardless of the FST’s outcome.

Q: Must I agree to take a breathalyzer test when requested by the police?

A: There are numerous consequences tied to breath test (or blood test) refusal. If a motorist refuses to submit to a breath or blood test, the first serious consequence is that one’s driver’s license will be suspended automatically for a period of time, plus any additional suspension if the defendant is convicted of the DWI charge. There is also a danger that refusing of a breath test can be brought up by the prosecution as evidence itself, which is known in some legal circles as “consciousness of guilt.” A skilled DWI defense lawyer can also present evidence of his own to show possible reasons for the refusal, such as a fear of needles (in the case of a direct blood test).

Of course, an experienced DWI lawyer will usually be able to choose the best approach to defend against a charge of drunken driving. Professional trial attorneys can help their clients explore a variety of defenses and legal strategies against a DWI or drug DUI offense. Even something as basic as lack of probable cause for the original police stop may be enough to have the charges against the defendant dropped or reduced. Similarly, any errors in arrest procedures or administration of a breathalyzer test can call into question the legitimacy of the state’s evidence. Should the defense be able to show the court how weak the state’s case is, the defendant’s lawyer may be able to influence the outcome of the DWI case, which is usually more than one could do as a layperson going it alone in a court of law.