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Portable Breath Tests in New Jersey | DWI Defense Lawyer Robbinsville, NJ

What Typically Happens Once Someone Has Been Pulled Over on Suspicion of DWI?

Once someone has been pulled over, the officer may start asking them questions to determine whether the motorist was Driving While Intoxicated (DWI). The officer will often smell the “odor of an alcoholic beverage” which leads them to believe that the person being stopped has been drinking and may be under the influence of alcohol. The officer will want to know where the person is coming from, or where they are going. They’ll ask whether the person has had anything to drink, and how much. At that point, the officer might perform what are known as “pre-exit tests,” such as asking them to count backwards from one number to another or recite the alphabet from one letter to another. Don’t worry, no one is ever asked to do the alphabet backwards!

If you have been charged with drunk driving in Mercer County, Burlington County, or Middlesex County, NJ, talk to an experienced Robbinsville DWI defense lawyer today.

Three Main Field Sobriety Tests Used in New Jersey

Sometimes the pre-exit tests are not given, and the officer will ask the person to get out of the car for some testing “to make sure they’re able to drive safely.” At that point, the officer will usually ask the person to perform Standardized Field Sobriety Tests. There are three that have been studied and are correlated with a certain blood alcohol content. These are the Horizontal Gaze Nystagmus, in which the officer will ask a person to follow a stimulus (usually a pen or their finger) with their eyes without moving their head. They are looking for nystagmus, which is an involuntary jerking of the eyes. Sometimes nystagmus can be due to intoxication, but there are over 40 different causes of nystagmus. In any event, the HGN is not admissible in court as proof of intoxication, but it is routinely used by officers to help them determine probable cause to arrest.

Next, the officer will usually administer the Walk and Turn test, in which the person is given a set of instructions to follow and must walk 9 steps forward in a straight line, turn around and walk 9 steps back. The final test given is often the One Leg Stand, in which a person is asked to stand on one leg while counting out loud for a period of 30 seconds.

At this point, the officer will likely have enough information to determine whether to arrest or not. If he or she is convinced the person stopped is intoxicated, they may arrest at that point or administer a portable breath test to confirm their suspicion. Sometimes, if they’re uncertain, they will administer a Portable Breath Test (or PBT) to help them make their decision. If the person stopped has performed poorly on the SFSTs, they are almost certainly going to be arrested.

What Are Portable Breath Tests and Standardized Field Sobriety Tests? Are You Required to Do Them If You Are Pulled Over in New Jersey?

Some police departments in New Jersey use what is called a Portable Breath Test, or PBT. The PBT is never calibrated and many departments will perpetrate the fiction that they are only asking a person to blow into it for the purpose of establishing that they have consumed alcohol prior to being stopped by the police. In fact, PBTs do produce a reading, but because they have never been the subject of a Frye hearing (a type of hearing in which a judge decides whether a particular piece of “scientific” evidence is generally accepted in the scientific community), they are not admissible as proof of intoxication in a trial. Therefore, while many police departments ask defendants to take a PBT, they rarely report the actual reading given by the device in their reports. Rather, they use it as a tool to help them decide whether to arrest in cases they think are borderline. YOU DO NOT HAVE TO TAKE A PBT.

There are several Standardized Field Sobriety Tests, or SFSTs. The three which have been studied, and which police officers are trained in are the Horizontal Gaze Nystagmus, the Walk and Turn, and the One Leg Stand. These are ostensibly designed to measure impairment and supposedly correlate to a BAC of over .08%. The SFTS are a long topic, but the important things to know about them are that they are not deemed to be reliable unless they are given in the prescribed manner. That means that the instructions have to be given the same way every time. There are certain “clues” that officers are trained to look for in evaluating a person’s performance on the tests. The tests are not pass/fail, but have “decision points” to aid an officer in determining whether a person has performed satisfactorily on a particular test. Like the PBT, you do not have to take the SFSTs, but a judge can infer consciousness of guilt from your refusal to perform them. It is important to retain an attorney who has experience in evaluating both an officer’s administration of the SFSTs and a defendant’s performance on the tests.

Contact an Experienced Ewing DWI Defense Attorney Today

The Law Offices of Lauren E. Scardella can help you fight your DWI charges in Mercer County or Burlington County, NJ. Call (609) 587-1144 or fill out the online contact form to schedule a free initial consultation about your case. We have an office conveniently located at 2653 Nottingham Way STE 1, Hamilton Township, NJ 08619.

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