Refusal to Submit to a Breathalyzer Charge in New Jersey

Elizabeth, NJ Refuse Breath Test Attorney

Breathalyzer Refusal Attorney in New Jersey

If you are pulled over by the police on suspicion of driving while intoxicated (DWI) in New Jersey, you may be asked to take a breathalyzer test. This is a device that measures the amount of alcohol in your breath and estimates your blood alcohol concentration (BAC). In New Jersey, if a defendant blows a 0.08%, or above it is considered that the defendant was per se under the influence of alcohol while operating a vehicle. Anything below 0.08% is still considered as operating a vehicle while under the influence.

However, what if you refuse to take the breathalyzer test? Can the police force you to do it? What are the consequences of refusing? If you or a loved one has been charged with N.J.S.A. 39:4-50.4a, refusal to submit to a breathalyzer test, then you can be facing serious penalties. Typically, a police officer will charge a defendant with a DWI/DUI and a breathalyzer refusal charge. It is important to discuss your case with an experienced attorney when it comes to facing a breathalyzer refusal or DWI/DUI.

If you’re seeking legal representation in New Jersey, particularly for a breathalyzer refusal charge (N.J.S.A. 39:4-50.4a), or are a seeking criminal defense attorney for domestic violence, or manslaughter, Attorney Brett M. Rosen is an excellent choice. Here’s why:

  1. Experience: Brett M. Rosen is a seasoned lawyer, licensed in both New York and New Jersey. He has been practicing law for over 8 years, specializing in criminal and civil litigation.
  2. Client Satisfaction: Rosen has received high praise from his clients for his professionalism and effectiveness. Clients have described him as “the example of a true winner” and “one of NJ’s finest attorneys”.
  3. Trial Skills: Rosen has demonstrated exceptional trial skills, standing ‘toe to toe’ at trial against current and former prosecutors, and certified criminal and civil trial attorneys. His aggressive questioning and thorough approach have been commended by clients.
  4. High-Profile Cases: Rosen has handled high-profile cases, including representing a celebrity on their domestic violence case and a Grammy-Award winning artist on their drug cases.
  5. Recognition: He has been recognized as a Rising Star by Super Lawyers.

Contact us today for a consultation, or continue reading this guide that will provide you with a general overview of breathalyzer refusal law in New Jersey, as well as some common defenses that may be available to you.

Definition of Breathalyzer Refusal Charge in New Jersey

According to the New Jersey Revised Statutes, N.J.S.A. 39:4-50.2, this is a law that states that any driver who is arrested for suspected drunk driving or drug impairment must consent to a breath test to measure their blood alcohol concentration (BAC) or face penalties. The breath test is administered by a police officer using a device called an Alcotest, which is approved by the State. If the driver refuses to take the breath test, they will be charged with a separate offense of refusal, which carries its own consequences in addition to the DWI charge. Specifically, N.J.S.A. 39:4-50.2 states that:

Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle under the influence.

As you can see, anyone driving on a public road, or even a quasi-public road in New Jersey is deemed to have given his/her consent to a breathalyzer. This is generally called implicit consent. It also states that an officer can make the request when that officer has “reasonable grounds” to believe that such person was operating a car under the influence.

Frequently Asked Questions (FAQs) 

What is the definition of reasonable grounds?

The request for the breath test must be made by a police officer who has reasonable grounds to believe that the person has been operating a motor vehicle in violation of the DUI law, which means that the officer must have some objective and articulable facts or circumstances that indicate that the person is under the influence of alcohol or drugs.

Reasonable grounds are the same as reasonable suspicion, which, as stated previously, means that the police officer must have some objective and articulable facts or circumstances that indicate that the person is under the influence of alcohol or drugs. For example, if the officer observes the person swerving, speeding, running a red light, or smelling of alcohol, he or she may have reasonable grounds to suspect DUI and request a breath test. However, reasonable grounds are not enough to arrest and charge the person with DUI. For that, the officer must have probable cause, which means that the officer had a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinarily prudent person in believing the party is guilty of a DUI/DWI.  For example, if the person fails the field sobriety tests, or admits to drinking, the officer may have probable cause to arrest and charge the person with DUI. Therefore, reasonable grounds are a lower standard than probable cause and are used to justify the initial stop and the request for a breath test, while probable cause is a higher standard and is used to justify the arrest and the charge of DUI.

Can the Police Force You to Take a Breathalyzer in New Jersey?

The short answer is no. The police cannot force you to take a breathalyzer test in New Jersey. However, this does not mean that you can simply say no and walk away. Under New Jersey’s implied consent law, any person who operates a motor vehicle in New Jersey is deemed to have given consent to chemical testing of the driver’s breath. This means that by driving in New Jersey, you agree to take a breathalyzer test if the police have reasonable grounds to believe that you are driving while intoxicated. This is codified in N.J.S.A. 39:4-50.2 specifically states that:

No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act. A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.

If you refuse to take the breathalyzer test, you are violating the implied consent law and you will face additional penalties on top of the DWI charge. The police cannot forcibly test your BAC by taking a blood or urine sample unless they have a warrant or you consent to it. However, they can use other evidence, such as your driving behavior, appearance, speech, and field sobriety tests, to prove that you were intoxicated. Also, they must read you the potential consequences of refusing to submit to a breath test.

What are examples of refusing to take a breath test in New Jersey?

Some examples of where an individual may be charged with refusing to submit to a breath test in New Jersey are:

  • If the individual remains silent or does not explicitly agree to take the breath test when asked by the police officer.
  • If the individual tries to delay or avoid the breath test by asking to use the bathroom, make a phone call, or do anything else that postpones the administration of the test.
  • If the individual gives a weak or insufficient sample of breath, either intentionally or unintentionally, that prevents the breathalyzer device from obtaining an accurate reading.
  • If the individual provides only one breath sample instead of two, as required by law, to ensure the reliability of the test.
  • If the individual tries to ask questions without providing an explicit yes or no answer, such as if the individual asks the officer “what if I say/do”, etc.

These are some of the actions that can be considered a refusal to submit to a breath test in New Jersey, which can result in additional penalties on top of the DUI charges. 

What elements must the prosecutor prove for a Breathalyzer Refusal charge in New Jersey?

In order to convict a defendant of refusing a breathalyzer test in New Jersey:

  • The arresting officer had probable cause to believe the defendant was driving (or in actual physical control of a vehicle) while under the influence of alcohol or drugs.
  • The defendant was arrested for a DWI.
  • The officer informed the defendant of the consequences of refusal.
  • The officer requested a breath test.
  • The defendant refused to submit to a breath test.

These elements must be proven by a preponderance of the evidence, which means that the prosecutor must show that it is more likely than not that the defendant refused a breath test. If the prosecutor fails to prove any of these elements, the defendant cannot be convicted of refusing a breathalyzer test in New Jersey. However, the defendant may still face a DWI charge based on other evidence, such as the officer’s observations, field sobriety tests, or blood or urine tests.

What must the Judge find in order to convict me of Refusing a Breath Sample in New Jersey?

According to N.J.S.A. 39:4-50.4, a municipal court judge must:

  1. determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug, or marijuana or cannabis item;
  2. whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer;
  3. and if these elements of the violation are not established, no conviction shall issue. 

Preponderance of the evidence is best described as the standard of proof that applies to most civil cases in New Jersey. It means that the party who has the burden of proof must persuade the jury or the judge that the facts are more likely than not in favor of that party. In other words, the evidence must show that the officer’s claim is more probable than not, or more than 50% likely to be true.

The preponderance of the evidence standard is lower than the clear and convincing evidence standard, which requires a higher degree of certainty, and the beyond a reasonable doubt standard, which applies to criminal cases and requires the highest level of proof. The preponderance of the evidence standard is used in civil cases, as well as breathalyzer refusal cases.

Lastly, there will be an adverse inference against a defendant facing a breathalyzer refusal and DUI charge. This means that it is easier for the judge to decide the accused was operating under the influence simply because they refused to submit to a breath test. This adverse inference was decided by the Supreme Court of New Jersey in the case of State v. Stever.

Can I get a jury trial for my Refusal to Submit to a Breath Test in New Jersey? 

No, you cannot get a jury trial for your Refusal to Submit to a Breath Test in New Jersey. Refusing a breath test is a traffic violation, not a criminal offense. Therefore, you will only have a trial before a municipal court judge, who will decide your guilt or innocence based on the evidence presented by the prosecutor and your defense attorney. A jury trial is only available for criminal offenses that carry a potential sentence of more than six months in jail. A refusal charge does not involve any jail time, only license suspension, fines, and other penalties.

However, in New York, you can get a jury trial for a DUI. The reason New York allows trial by jury and New Jersey does not is that a DUI is a criminal charge in New York, and you have the right to trial by jury for any criminal offense that carries a potential sentence of more than six months in jail. 

Is Plea Bargaining allowed for a Breathalyzer Refusal in New Jersey?

In New Jersey, it is prohibited to plea bargain a DUI charge. Similarly, a municipal prosecutor is not allowed to plea bargain a first offense charge of a breathalyzer refusal charge. This means that if you are charged with both DWI and refusal, you cannot negotiate a deal to drop one of the charges in exchange for pleading guilty to the other. You will have to face the penalties for both offenses, which can include license suspension, fines, and mandatory education programs.

The only exception to this rule is if the prosecutor agrees to sentence a refusal concurrently with a charge for driving while intoxicated (DWI), N.J.S.A. 39:4-50. This means that the license suspension and other penalties for the refusal will run at the same time as the penalties for the DWI, rather than consecutively. However, this is not a guarantee and depends on the discretion of the prosecutor and the judge.

However, plea bargaining is allowed for a second or third charge of refusing to submit to a breath test in New Jersey. A possible plea bargain is an important consideration when dealing with these charges since the conviction of a second or subsequent refusal offense carries a license suspension of two to ten years. However, plea bargaining is still subject to the prosecutor’s discretion and the legal basis of the case.

If you are facing charges of refusal of a breathalyzer in NJ, you should contact a qualified DWI defense attorney as soon as possible. A lawyer can help you challenge the validity of the breath test refusal charge and explore any possible defenses or mitigating factors that may apply to your case. A lawyer can also advise you on the best course of action to protect your rights and minimize the impact of the charges on your life.

What Are the Consequences of Refusing a Breathalyzer in New Jersey?

Refusing a breathalyzer test in New Jersey is a serious offense that carries harsh penalties. The penalties for a breathalyzer refusal are codified under N.J.S.A. 39:4-50.4a. Depending on the number of prior DWI or refusal convictions you have, you may face the following penalties for refusing a breathalyzer test:

  • First-time refusal: A minimum fine of $300 to a maximum of $500, an ignition interlock device installed in your vehicle for 9 to 15 months or driver’s license suspension for that period, 12 to 48 hours in an Intoxicated Driver Resource Center (IDRC), and a Motor Vehicle surcharge of $1,000 for three years following the conviction.
  • Second-time refusal: A fine of $500 to $1,000, a minimum of 1 to a maximum of 2-year license suspension, an ignition interlock device installed in your vehicle for 2 to 4 years, 48 hours in an IDRC, and a Motor Vehicle surcharge of $1,000 for the three years following the conviction.
  • Third-time refusal: A fine of $1,000, an 8-year license suspension, an ignition interlock device installed in your vehicle for 10 to 20 years, 48 hours in an IDRC, and a Motor Vehicle surcharge of $1,500 for the three years following the conviction.

Please keep in mind for a second or third offense breathalyzer refusal there is no jail time associated with it. However, the Motor Vehicle surcharges as well as the fines and other conditions the court imposes must be paid off and completed before your license can be fully restored. As you can see, these penalties are severe and cause a lasting impact on the foreseeable future if convicted. Furthermore, if you refuse a breathalyzer test in a school zone, the penalties are doubled.

Defenses for Refusing a Breathalyzer Charge in New Jersey

Refusing a breathalyzer test in New Jersey is not a wise decision, as it can result in severe consequences and make your DWI case more difficult to defend. However, if you have already refused a breathalyzer test, you still have some options to fight the charge and reduce the penalties.

The best thing you can do is to hire an experienced and aggressive criminal defense attorney who can challenge the validity of the refusal charge and the DWI charge. Your attorney may be able to argue that:

Procedural Defenses

  • Improper Stop: The police did not have probable cause or reasonable suspicion to stop you or arrest you for DWI/DUI.
  • Uninformed by Officer: The police did not inform you of the consequences of refusing the breathalyzer test.
  • Misinformation by Officer: The officer misinformed you about your rights or the consequences of refusing the test, potentially invalidating your consent.
  • Improper Administration of Breathalyzer: The police did not follow the correct procedures. If the officer did not follow proper procedures while administering the breathalyzer test, then they potentially compromised its accuracy and admissibility in court.
  • Faulty Alcotest: The breathalyzer device was faulty or not calibrated correctly.
  • Chain of Custody Issues: The evidence (breathalyzer sample) was not properly handled or documented, raising concerns about its integrity and reliability.
  • Language Barrier: There was a dialect or language barrier that prohibited you from understanding the consequences.

Medical Defenses

  • You had a medical condition or other valid reason that prevented you from taking the breathalyzer test. Certain medical conditions can affect breathalyzer readings, such as acid reflux, diabetes, or recent mouth surgery. Presenting medical evidence demonstrating such conditions could explain an inaccurate reading.
  • Interfering Substances: Mouthwash, cough drops, or even certain foods can interfere with breathalyzer results. Evidence confirming the presence of such substances at the time of the test could help explain the reading.

Other Defenses

  • Duress or Coercion: You were pressured or forced into refusing the test due to threats or intimidation by the officer.
  • Religious Objections: Certain religious beliefs may prohibit submitting to chemical tests. While unlikely to be successful, this defense could be explored in specific cases.
  • Mechanical Failure of Breathalyzer: Evidence demonstrating the breathalyzer’s malfunction at the time of the test could raise doubt about its accuracy.
  • Field Sobriety Tests: Did you perform well on field sobriety tests? These can be used to counter the officer’s suspicion of intoxication.
  • Witness Testimony: Were there any witnesses who can testify about your sobriety?

These are just some of the possible defenses that your attorney may use to help you avoid or minimize the penalties of refusing a breathalyzer test in New Jersey. However, every case is different and the outcome depends on the facts and circumstances of your situation.

Therefore, if you are facing a refusal charge or a DWI charge in New Jersey, you need to contact a qualified and reputable criminal defense lawyer as soon as possible. Your lawyer will review your case, advise you of your rights and options, and represent you in court. Do not delay, as the sooner you act, the better your chances of achieving a favorable result.

Breath Test in New Jersey for DWI/DUI Cases

If you are pulled over by a police officer in New Jersey and suspected of driving while intoxicated (DWI) or driving under the influence (DUI), you may be asked to take a breath test. A breath test is a device that measures the amount of alcohol in your breath, which is then used to estimate your blood alcohol concentration (BAC). The legal limit for BAC in New Jersey is 0.08%, meaning that if your breath test result is at or above this level, you can be charged with a DWI/DUI offense.

However, not all breath tests are the same, and not all breath test results are accurate or admissible in court. Depending on the type of breath test, the way it is administered, and the circumstances of your case, you may have grounds to challenge the validity of the breath test result and fight your DWI/DUI charge. This article will explain the basics of breath testing in New Jersey, the different types of breath tests, and the potential defenses you can use to contest the breath test evidence.

Types of Breath Tests in New Jersey

There are two main types of breath tests that are used in New Jersey for DWI/DUI cases: the preliminary breath test (PBT) and the Drager Alcotest.

Preliminary Breath Test (PBT)

A PBT is a portable device that is used by police officers at the scene of a traffic stop or a DWI/DUI investigation. The PBT is a quick and simple test that gives an initial indication of your blood alcohol concentration (BAC) level. The officer may ask you to blow into the PBT device after observing signs of impairment, such as slurred speech, bloodshot eyes, or poor performance on field sobriety tests.

However, the PBT is not a reliable or accurate measure of your BAC level, and the PBT result is not admissible in court as proof that you were driving while intoxicated. The PBT is only used to establish probable cause for the officer to arrest you and take you to the police station for a more accurate breath test. You are not legally required to take the PBT, and you can refuse it without any legal consequences. However, the officer can still arrest you based on other evidence of impairment, such as your driving behavior, physical appearance, or field sobriety test results.

Drager Alcotest

The Drager Alcotest is the official breath test device that is used by New Jersey law enforcement for all DWI/DUI cases. The Drager Alcotest is a larger and more sophisticated device than the PBT, and it is administered at the police station after your arrest. The Drager Alcotest uses infrared radiation to detect ethanol molecules in your breath sample and calculate your BAC level. The Drager Alcotest result is admissible in court as evidence of your intoxication, and it can be used to convict you of a DWI/DUI offense.

Unlike the PBT, you are legally obligated to take the Drager Alcotest under New Jersey’s implied consent law. This law states that by driving on New Jersey roads, you automatically consent to submit to a breath test if you are arrested for a DWI/DUI offense. If you refuse to take the Drager Alcotest, you can face additional penalties, such as a longer license suspension, higher fines, and mandatory installation of an ignition interlock device on your vehicle.

Blood Test in New Jersey for DWI/DUI Cases

If you are arrested for driving while intoxicated (DWI) or driving under the influence (DUI) in New Jersey, you may be asked to take a blood test. A blood test is a device that measures the amount of alcohol or drugs in your blood, which is then used to determine your level of intoxication. The legal limit for blood alcohol concentration (BAC) in New Jersey is 0.08%, meaning that if your blood test result is at or above this level, you can be charged with a DWI/DUI offense.

However, not all blood tests are the same, and not all blood test results are accurate or admissible in court. Depending on the circumstances of your case, you may have grounds to challenge the validity of the blood test result and fight your DWI/DUI charge. This article will explain the basics of blood testing in New Jersey, the legal implications of blood testing, and the potential defenses you can use to contest the blood test evidence.

Types of Blood Tests in New Jersey

There are two main types of blood tests that are used in New Jersey for DWI/DUI cases: the voluntary blood test and the warrant blood test.

Voluntary Blood Test

A voluntary blood test is a blood test that you agree to take without being coerced or threatened by the police. A voluntary blood test is usually requested by the police when they suspect that you are under the influence of drugs, or when you refuse to take a breath test. A voluntary blood test is administered by a qualified medical professional at a hospital or a clinic.

Unlike a breath test, you are not legally required to take a blood test under New Jersey’s implied consent law. This law states that by driving on New Jersey roads, you automatically consent to submit to a breath test if you are arrested for a DWI/DUI offense. However, this law does not apply to blood tests, which are more invasive and require your explicit consent. Therefore, you have the right to refuse a blood test without any legal consequences, such as a license suspension or a fine. However, the police can still arrest you based on other evidence of impairment, such as your driving behavior, physical appearance, or field sobriety test results.

Warrant Blood Test

A warrant blood test is a blood test that is authorized by a judge or a magistrate based on probable cause. Probable cause means that the police have a reasonable belief that you have committed a crime, based on the facts and circumstances of the case. A warrant blood test is usually obtained by the police when you refuse to take a voluntary blood test, or when there are exigent circumstances that justify a blood test, such as a serious injury or a death resulting from a car accident. A warrant blood test is also administered by a qualified medical professional at a hospital or a clinic.

Unlike a voluntary blood test, you cannot refuse a warrant blood test without facing legal consequences. If you refuse to comply with a warrant blood test, you can be charged with obstruction of justice, which is a criminal offense that carries a penalty of up to 18 months in jail and a fine of up to $10,000. Additionally, you can still face the administrative penalties for refusing a breath test, such as a license suspension, a fine, and an ignition interlock device installation.

Challenges to Blood Test Results in New Jersey

Although blood tests are more reliable than breath tests, they are not infallible, and there are many factors that can affect the accuracy and validity of the blood test result. Some of the common challenges to blood test results in New Jersey include:

  • Improper administration of the blood test. The police and the medical personnel who administer the blood test must follow certain procedures and protocols to ensure the accuracy and validity of the blood test result. For example, the police must obtain your consent or a warrant before taking a blood sample, and the medical personnel must use sterile equipment and proper storage and handling methods to prevent contamination or degradation of the blood sample. If the police or the medical personnel fail to follow any of these procedures, the blood test result may be inaccurate or invalid, and you can challenge it in court.
  • Medical conditions or substances that affect the blood test result. Some medical conditions or substances can affect the blood test result by producing false positives or inflating your BAC or drug level. For example, if you have diabetes, hemophilia, or anemia, you may have higher levels of acetone, ethanol, or methanol in your blood, which can be mistaken for alcohol or drugs by the blood test device. Similarly, if you use prescription medication, over-the-counter medication, or herbal supplements that contain alcohol or drugs, you may have residual substances in your blood that can skew the blood test result. If you have any of these medical conditions or substances, you can challenge the blood test result by presenting evidence of your condition or substance use, such as medical records, prescriptions, or receipts.
  • Lack of probable cause or reasonable suspicion for the traffic stop or the arrest. The police who stop you or arrest you for a DWI/DUI offense must have probable cause or reasonable suspicion to do so. Probable cause means that the police have a reasonable belief that you have committed a crime, based on the facts and circumstances of the case. Reasonable suspicion means that the police have a reasonable suspicion that you are involved in criminal activity, based on specific and articulable facts. If the police do not have probable cause or reasonable suspicion to stop you or arrest you, the blood test result may be inadmissible in court as the fruit of an illegal search or seizure. You can challenge the blood test result by showing that the police did not have a valid reason to stop you or arrest you, such as a traffic violation, a tip, or an observation of impairment.

Blood tests are an important part of the DWI/DUI process in New Jersey, but they are not the final word on your guilt or innocence. Blood tests can be inaccurate, invalid, or inadmissible in court, depending on the circumstances of your case. If you are facing a DWI/DUI charge based on a blood test result, you should consult with an experienced DWI/DUI defense attorney who can help you challenge the blood test result and protect your rights. A DWI/DUI conviction can have serious consequences, such as license suspension, fines, jail time, and a criminal record, so you should not take any chances with your defense. Contact a DWI/DUI defense attorney today and get the legal representation you need.

Field Sobriety Test in New Jersey for DWI/DUI Cases

If you are pulled over by a police officer in New Jersey and suspected of driving while intoxicated (DWI) or driving under the influence (DUI), you may be asked to take a field sobriety test. A field sobriety test is a series of physical and mental exercises that are designed to assess your balance, coordination, and attention. The police use the field sobriety test to gather evidence of your impairment and to establish probable cause for your arrest.

However, not all field sobriety tests are the same, and not all field sobriety test results are accurate or admissible in court. Depending on the type of field sobriety test, the way it is administered, and the circumstances of your case, you may have grounds to challenge the validity of the field sobriety test result and fight your DWI/DUI charge. This article will explain the basics of field sobriety testing in New Jersey, the legal implications of field sobriety testing, and the potential defenses you can use to contest the field sobriety test evidence.

Types of Field Sobriety Tests in New Jersey

There are two main types of field sobriety tests that are used in New Jersey for DWI/DUI cases: the standardized field sobriety tests (SFSTs) and the non-standardized field sobriety tests (NSFSTs).

Standardized Field Sobriety Tests (SFSTs)

SFSTs are a set of three field sobriety tests that are approved and standardized by the National Highway Traffic Safety Administration (NHTSA). The NHTSA has established guidelines and criteria for the administration and evaluation of these tests, which are widely accepted by courts and law enforcement agencies across the country. The three SFSTs are:

  • Horizontal gaze nystagmus (HGN): This test involves the officer moving a stimulus, such as a pen or a finger, horizontally in front of your eyes and asking you to follow it with your eyes only. The officer is looking for involuntary jerking of your eyes, known as nystagmus, which is allegedly caused by alcohol or drug impairment.
  • Walk-and-turn (WAT): This test involves the officer instructing you to walk nine steps along a straight line, heel to toe, turn around, and walk back the same way. The officer is looking for signs of imbalance, such as stepping off the line, using your arms for balance, or turning incorrectly.
  • One-leg stand (OLS): This test involves the officer instructing you to stand on one leg, raise the other leg about six inches off the ground, and count out loud until told to stop. The officer is looking for signs of instability, such as swaying, hopping, putting your foot down, or raising your arms.

According to the NHTSA, each of these tests has a specific number of clues that indicate impairment. If you exhibit a certain number of clues on each test, the officer can conclude that you are likely to have a blood alcohol concentration (BAC) of 0.08% or higher, which is the legal limit in New Jersey.

Non-Standardized Field Sobriety Tests (NSFSTs)

NSFSTs are any other field sobriety tests that are not approved or standardized by the NHTSA. These tests are less common and less reliable than the SFSTs, and they vary widely in their administration and evaluation. Some examples of NSFSTs are:

  • Finger-to-nose: This test involves the officer instructing you to close your eyes, tilt your head back, and touch the tip of your nose with your index finger. The officer is looking for signs of inaccuracy, such as missing your nose, using the wrong finger, or opening your eyes.
  • Rhomberg balance: This test involves the officer instructing you to stand with your feet together, close your eyes, tilt your head back, and estimate the passage of 30 seconds. The officer is looking for signs of impairment, such as swaying, opening your eyes, or being off by more than four seconds.
  • Hand pat: This test involves the officer instructing you to hold one hand palm up and the other hand palm down on top of it, and then to alternate the position of your hands while patting them together. The officer is looking for signs of confusion, such as failing to switch the position of your hands, failing to pat your hands, or stopping the test.

Unlike the SFSTs, there are no established standards or criteria for the NSFSTs, and their accuracy and validity are questionable. Different officers may administer and evaluate these tests differently, and different factors may affect your performance on these tests, such as fatigue, illness, injury, or weather conditions.

Legal Implications of Field Sobriety Testing in New Jersey

Field sobriety testing is an important part of the DWI/DUI process in New Jersey, but it is not the final word on your guilt or innocence. Field sobriety testing has several legal implications that you should be aware of, such as:

  • You are not legally required to take a field sobriety test in New Jersey. Unlike a breath test, which you are obligated to take under New Jersey’s implied consent law, you have the right to refuse a field sobriety test without any legal consequences. However, refusing a field sobriety test may not prevent the officer from arresting you or charging you with a DWI/DUI offense, based on other evidence of impairment, such as your driving behavior, physical appearance, or odor of alcohol.
  • The results of a field sobriety test are not conclusive evidence of impairment. Field sobriety tests are not foolproof, and they can be affected by many factors that are unrelated to alcohol or drug impairment, such as your age, weight, health, medication, clothing, footwear, or environmental conditions. Moreover, field sobriety tests are subjective, and they depend on the officer’s observation, interpretation, and bias. Therefore, the results of a field sobriety test are not definitive proof that you were driving while intoxicated, and they can be challenged in court.
  • The results of a field sobriety test can be used against you in court. If you take a field sobriety test and fail it, the officer can use the results as evidence to support your arrest and prosecution for a DWI/DUI offense. The officer can testify in court about your performance on the field sobriety test and the clues of impairment that they observed. The prosecutor can use the results of the field sobriety test to argue that you were under the influence of alcohol or drugs and that you violated the law.
Challenges to Field Sobriety Test Results in New Jersey

Although field sobriety tests are widely used and accepted by courts and law enforcement agencies, they are not infallible, and there are many ways to challenge the results of a field sobriety test in New Jersey. Some of the common challenges to field sobriety test results in New Jersey include:

  • Lack of probable cause or reasonable suspicion for the traffic stop or the field sobriety test. The officer who stops you or asks you to take a field sobriety test must have probable cause or reasonable suspicion to do so. Probable cause means that the officer has a reasonable belief that you have committed a crime, based on the facts and circumstances of the case. Reasonable suspicion means that the officer has a reasonable suspicion that you are involved in criminal activity, based on specific and articulable facts. If the officer does not have probable cause or reasonable suspicion to stop you or ask you to take a field sobriety test, the results of the field sobriety test may be inadmissible in court as the fruit of an illegal search or seizure. You can challenge the results of the field sobriety test by showing that the officer did not have a valid reason to stop you or ask you to take a field sobriety test, such as a traffic violation, a tip, or an observation of impairment.
  • Improper administration or evaluation of the field sobriety test. The officer who administers or evaluates the field sobriety test must follow certain procedures and protocols to ensure the accuracy and validity of the field sobriety test result. For example, the officer must give clear and consistent instructions, demonstrate the test, check for any physical or mental impairments that may affect your performance, and grade the test according to the NHTSA guidelines. If the officer fails to follow any of these procedures, the field sobriety test result may be inaccurate or invalid, and you can challenge it in court.
  • Alternative explanations for the field sobriety test result. The officer who administers or evaluates the field sobriety test may assume that your performance on the test is solely caused by alcohol or drug impairment. However, there may be other explanations for your performance on the test that are unrelated to alcohol or drug impairment, such as fatigue, illness, injury, medication, clothing, footwear, or environmental conditions. If you have any of these alternative explanations for your performance on the field sobriety test, you can challenge the result by presenting evidence of your explanation, such as medical records, receipts, or witness testimony.

Field sobriety tests are an important part of the DWI/DUI process in New Jersey, but they are not the final word on your guilt or innocence. Field sobriety tests can be inaccurate, invalid, or inadmissible in court, depending on the type of field sobriety test, the way it is administered, and the circumstances of your case.

Top-Notch NJ Breathalyzer Refusal Charge Lawyer

There are many reasons why you should hire New Jersey attorney Brett M. Rosen for your breathalyzer refusal charge. Here are some of them:

  • Brett M. Rosen is a passionate and experienced criminal defense attorney who specializes in DWI/DUI cases. He has successfully defended many clients who were charged with refusing a breathalyzer or driving while intoxicated.
  • Brett M. Rosen is a skilled and assertive cross-examiner who can challenge the validity and accuracy of the breath test result and the officer’s testimony. He can expose any flaws or errors in the administration or evaluation of the breath test, and present alternative explanations for your performance on the test.
  • Brett M. Rosen is a dedicated and trusted lawyer who cares about his client and his/her rights. He will treat his client with respect and compassion, and provide him/her with the best legal representation possible. He will fight for his client’s freedom and reputation, and protect him/her from the serious consequences of a breathalyzer refusal charge.

If you are facing a breathalyzer refusal charge, a first offense DWI, second offense DWI, or even a third offense DWI/DUI in New Jersey, you should not hesitate to contact Brett M. Rosen and get the legal help you need. He will review your case, explain your options, and devise a winning strategy for your defense. He will work hard to achieve the best possible outcome for your case, whether it is a dismissal, a reduction, or an acquittal. Hire Brett M. Rosen today and let him fight for you.