NJ DWI Testing

If you have been charged with DWI in New Jersey, you probably submitted to a breath, blood, or urine BAC test. You also may have taken one or more field sobriety tests, such as the one-leg stand test or the walk-and-turn test. Learn more about these tests—how they are conducted and how an experienced defense attorney can help defend you against the results – on this page.

New Jersey DWI Alcohol Intoxication

Two of the most commonly cited “objective” signs of alcohol intoxication in New Jersey DWI arrest cases are red eyes and an odor of alcohol on the breath. Because the redness of your eyes and the strength of your breath odor are entirely up to the judgment of the arresting officer, it can be hard for a New Jersey DWI lawyer to argue that your eyes weren’t red or your breath didn’t smell like alcohol. Therefore, he will more likely counter this claim by arguing that even if your eyes were red or your breath did smell like alcohol, it wasn’t necessarily caused by alcohol intoxication.

Attacking a Claim of Eye Redness

There are countless reasons why a person’s eyes may be red, the vast majority of which have nothing to do with alcohol consumption. Wind irritation, dryness of the air, tiredness, working and environmental conditions, having something in your eye, or crying all cause eye redness, and these are totally unrelated to alcohol.

Attacking a Claim of Odor of Alcohol

Police officers frequently use odor of alcohol on a driver’s breath to determine that a driver has been drinking and to justify the start of a DWI investigation. They are rarely as skilled at correlating blood alcohol content with breath odor strength as they think they are. One study asked 20 experienced police officers to detect alcohol odor on the breath of 14 subjects with blood alcohol levels between zero and 0.13 percent. They were unable to identify the beverage type (beer, wine, or hard liquor) or the relative blood alcohol levels of the subjects.

New Jersey Alcotest 7110 Errors

The Alcotest 7110 is allegedly one of the more advanced breath testing machines. Even though it has been deemed scientifically reliable, this does not mean that it always works correctly. The Alcotest 7110 uses two separate types of technology:

Infrared spectrometry: The breath enters an infrared chamber where it is absorbed and bombarded with infrared light. Alcohol particles absorb the infrared radiation. As it dissipates, the machine will measure the amount of infrared light that remains in the chamber and use an algorithm to compute that into a blood alcohol number.

Electrochemical analysis: This is the process of analyzing the breath sample in what is essentially a fuel cell. The alcohol is introduced to the fuel cell, which creates a charge. The Alcotest 7110 is calibrated to detect and measure the strength of the charge and compute it to a BAC number.
Under the Energy Policy Act of 2005, Daylight Savings Time (DST) was changed, effective April, 2007. Prior to the Act, DST occurred on the first Sunday in April and the last Sunday of October. Under the new change, DST occurs on the second Sunday in March and first Sunday in November.

The Alcotest 7110 Mark IIIC was manufactured prior to 2007, and as such is preprogrammed to reflect the old daylight savings time. Therefore for approximately two to three weeks in March/April the times reflected on the Alcohol Influence Report (AIR) will be off by plus one hour. That is, you should add one hour to the time for each IR and EC. In the fall, the time will be off an hour for only one week, and during such time, one hour should be subtracted from the time reflected on the AIR.

The time change becomes critical because of the twenty minute-observation period. One could seemingly believe that the AIR proves the officer did not observe the 20-Minute observation period, when in fact, up to an hour and 19 minutes could have elapsed.

By way of example: The defendant is arrested on March 15, at 11:00 P.M., and taken to the police station at 11:10. The AIR show that the first blow occurred at 11:29, which means in order to have a valid breath test, the 20 minute-observation period must have started at 11:09. Woo hoo! Home-Run! Slam-Dunk! In your face Mr. Prosecutor, right? WRONG! Remember you add an hour to the time on the AIR’s printed on the days between the second Sunday in March and the First Sunday in April. Therefore, the first breath test actually occurred at 12:21 A.M. and the operator had ample time to observe the test subject.

To be sure you are cognizant of the effect of a time change on the AIR, a good DWI lawyer will mark his calendar to remind him that all AIR’s during this period will be off.

You may be surprised to learn that there are 24 potential errors that can occur on any given breath test conducted on the Alcotest 7110. Some of these can be caused by the police officer who is operating the machine, although the officer may try to blame the person being tested.

DWI Blood Test Inaccuracies

Although the most common form of BAC testing is breath analysis, sometimes collecting a breath sample is not possible. For example, if a driver is injured due to a vehicular accident, he or she may be unable to provide a breath sample. In this instance, a blood sample may be drawn and sent to a forensics laboratory for testing.

Blood Testing is Not Infallible

The forensics lab uses a method called gas chromatography to analyze the blood and determine its alcohol content. While this is generally considered to be one of the most accurate tests for blood alcohol content, it is not without its faults, and the results of a blood test can be challenged from many angles. Questions the prosecution will have to answer regarding the blood test include:

  • Was the sample taken in a lawful manner?
  • Was the sample’s chain of custody documented and unbroken?
  • Were all the machines used for testing properly calibrated and maintained?
  • Were the samples handled properly to ensure there was no contamination?
  • Were all proper testing procedures followed?
  • Was the technician properly trained and certified?

Breath, blood and urine tests for blood alcohol content can yield inaccurate results and cause good people to be wrongly convicted of drunk driving charges.

The following are just a few of the defenses your attorney may explore to challenge the validity of your DWI blood test results:

  1. Equipment: Was the blood testing equipment faulty, broken, or not maintained properly?
  2. Technician: Was the phlebotomist properly certified? Did he or she correctly follow procedures?
  3. Time Delay: If the blood test was taken too long after your arrest, your “rising blood alcohol” level will not accurately reflect your BAC at the time of driving.
  4. Chain-of-custody: A break in the chain-of-custody of the blood sample could possibly result in sample switching or contamination.
  5. Fermentation: If the blood sample was left out and fermented after it was collected, it will create its own alcohol and yielding falsely high results.
  6. Rubbing Alcohol: If the phlebotomist sterilized your arm with an alcohol pad, this could have caused an elevated BAC reading.
  7. Storage: If the blood was stored improperly, or there were inadequate levels of anticoagulants and preservatives in the vial, the results could be inaccurate.

 

New Jersey Breath Test Refusal

Under New Jersey’s implied consent law, you agreed to submit to the taking of breath in order to exercise the privilege to drive in the Garden State when you were issued a New Jersey drivers license. If you are arrested for a DWI, the officer may request a breath test (this is the breath test at the machine at the police station NOT the handheld device used at roadside) to determine if your BAC is above the legal limit.

The penalties for refusing to take the breath test begin with a suspension of your license for a minimum of seven months for a first offense and a fine from $300+. Additionally, if you were driving within 1,000 feet of a school, then the penalties for breath test refusal are doubled.

A “refusal” can take different forms, such as:

  1. An explicit “no”
  2. Silence
  3. Lack of cooperation—not breathing into the machine with full effort

You do not have the right to have an attorney present with you during the test. Miranda rights do not apply to breathalyzer testing in New Jersey. It is erroneous to think that by refusing a breath test you will avoid DWI charges just because there is no record of your BAC. In fact, the prosecution can argue that you refused the test because you knew that you were intoxicated above the legal limit. In other words, you CAN be convicted for DWI without evidence from a breathalyzer test.

Breath testing using the Alcotest 7110 is by far the most common form of chemical BAC testing used by law enforcement in New Jersey. Police departments are responsible for maintaining these machines and ensuring that those who operate them are properly trained and certified.

Challenging a Breath Test in Court

There are strict procedures and protocols that must be adhered to when administering a breath alcohol test. If the officer who administers your test fails to follow these procedures, the results may be inaccurate and could be inadmissible as evidence in trial. It is also extremely important that the breath testing machine is properly maintained and calibrated. A good DWI defense attorney will always ask for maintenance records of the machine used in your breath BAC test to ensure that it was in good repair.

Breath testing machines are highly sensitive and can easily register a falsely high reading if there is any residual alcohol in your mouth at the time of the test. This is why an officer is supposed to observe you for at least 20 minutes prior to administering the test. During this 20-minute observation period, you are not supposed to put anything in your mouth, burp or regurgitate—any of which could lead to a higher BAC reading.

While the penalties in a refusal case are enhanced and defending these cases is more complicated, refusals can be beaten. The State must prove that probable cause existed to arrest, that you were asked to provide a breath sample, that you refused to provide a sample, and that you were advised of penalties for refusing. In a case like this, it is in your best interest to consult an attorney who is experienced in defending refusals immediately.

New Jersey DWI Urine Testing

Urine tests are often used to test for illegal substances in cases of driving under the influence of drugs. Although a urine test can give insight into a person’s drug use history, it is not accurate in determining whether that person was under the influence of drugs at the time of the traffic stop. This is why a drug recognition expert is often utilized in DWI drug cases.

New Jersey Drug Recognition Experts

If a law enforcement officer believes a suspect to be under the influence of drugs, the officer may request that he or she perform additional testing beyond the standard field sobriety tests. This complicated 12-step procedure is called a Drug Recognition Evaluation, and it is often administered by a Drug Recognition Expert (DRE).

The use of these so-called “experts” has caused concern among many in the legal and scientific communities. Police officers are generally trained to recognize symptoms of drug use and are not experts in detecting impairment, regardless of what they call themselves. Relying on symptom evaluation rather than the totality of the tests can cause officers to miss other clues of non-impairment.

New Jersey Standardized Field Sobriety Tests

In New Jersey, if you get pulled over on suspicion of a DWI, you are likely to face a battery of tests called the Standardized Field Sobriety Tests (SFST). The are the “acrobatic” tests that police ask drivers to perform at roadside. There are three tests, the straight line walk and turn, the one leg stand, and the horizontal gaze nystagmus- following the officer’s finger or pen with your eyes. The problem with these tests are they do not measure alcohol levels and just because someone fails them does not mean they were intoxicated. Many people may perform poorly on them. Some include those who are:

  • Elderly
  • Overweight
  • Suffered Leg or Back Injuries
  • Suffering from illness
  • Women Wearing High Heels
  • Clumsy People
  • Extremely Nervous or Scared People

Despite all of these flaws, judges often believe the assessment of the police officer and give a lot of weight to performance on these tests. This is why it is important for anyone charged with a DWI to consult a professional DWI attorney who has experience with challenging the SFSTs. Attorney Steven W. Hernandez has extensive training and multiple certifications in field sobriety testing.

New Jersey Walk-and-Turn Tests

Drivers should understand the three field sobriety tests standardized by the National Highway Traffic Safety Administration. These tests include the Horizontal Gaze Nystagmus (HGN) test, the One-Leg Stand test, and the Walk-and-Turn test. If an officer administered the walk-and-turn test in your case, you may wish to discuss your situation with New Jersey DWI lawyer Steven Hernandez.

The Walk-and-Turn (WAT) test relies on eight clues to determine a driver’s impairment. If the officer identifies at least two of the eight clues during the walk-and-turn test, the officer may conclude that the driver’s blood alcohol concentration (BAC) is higher than 0.10%.

The first two clues require evaluation by the officer while the driver stands heel-to-toe and listens to the officer’s instructions. At this point, the officer considers whether the driver cannot remain balanced or continue standing in the heel-to-toe stance. The second clue requires the officer to see whether the driver starts walking before instructed to do so.

The additional clues of impairment evaluate the driver during the walking stage of the field sobriety test. These clues include: a pause of several seconds during the walk; failure to walk using heel-to-toe by a gap of more than 1/2 inch; placement of a foot completely off the line to be walked; raising of the driver’s arms by more than six inches during the walk; an incorrect number of steps taken or a failure to follow instructions; and an improper turn.

The officer must properly execute the walk-and-turn test. Officer instructions require performance of the test with a designated straight line on a non-slippery surface that is relatively level, hard, and dry. The officer must allow for the removal of shoes with heels over two inches in height. Furthermore, the officer must consider the possibility that drivers with middle ear, leg, or back problems, as well as drivers over the age of 65, may experience difficulties with this test.

As lawyer who specializes in DWI defense, Steven W. Hernandez has received advanced training in standardized field sobriety testing. In March, 2010, he completed the DUI Detection & Standardized Field Sobriety Testing course, the same course offered to police officer throughout the country to detect impaired drivers. IN September, 2011, Mr. Hernandez, became one of a handful of lawyers in New Jersey to become an Instructor in DUI Detection and Standardized Field Sobriety Testing. In addition, Steven Hernandez is the only New Jersey lawyer with his Forensic Sobriety Assessment (FSA) certificate, by demonstrating knowledge of the science and forensic use of roadside sobriety testing.

Problems with Standardized Field Sobriety Tests (FSTs)

The main problem with these field sobriety tests is that even a perfectly sober person can fail them. Further, outside influences such as inclement weather, bright lights from passing cars, or even certain medical conditions can hurt your performance on one or more test.

Some of the more common reasons for failing a field sobriety test include:
Being Overweight
Being Elderly
Having Leg or Back Injuries
Suffering from a Medical Illness
Wearing Inapproprite Footwear (i.e. High-Heels)
Being Naturally Clumsy or Ill-Balanced
Being Nervous or Scared

New Jersey DWI FSTs Defenses

You are driving home when suddenly a squad car slips behind you. Lights flash and the siren blares. You pull over, step from your vehicle, and are told by the police officer to walk a line. If you submit to and fail a field sobriety test, your New Jersey DWI lawyer will need to find reasonable doubt in its administration.

These tests do not measure blood alcohol levels. Rather, they look at coordination and dexterity. The conditions under which field sobriety tests are given generally could not be worse. It may be dark, the roadside rough and potted, and you are likely upset and frightened. Your New Jersey DWI lawyer will use all this in his questioning of the arresting officer.

When the officer takes the stand, your lawyer does not want to spend too much time on the field sobriety test. Rather, his endeavor is to ask enough questions to establish reasonable doubt, then move on. He can begin by asking the officer about the tests administered. Assuming the officer offers that after the first test he knew you were intoxicated, he will be asked why he then felt he had to give you two more tests. Ultimately, he will lead the officer into admitting that the results of the test are a matter of opinion and are therefore subjective and open to question.

Your lawyer will try to establish that the officer had already decided you were guilty. f you fail a field sobriety test, your New Jersey DWI lawyer will try to undermine the test’s validity by calling into question the fairness of its administration.

NJ Field Sobriety Tests v. Chemical Tests

 When you are stopped for DWI in New Jersey, you are asked to take some Field Sobriety Tests. New Jersey DWI lawyer Steven Hernandez will explain to you why field sobriety tests, which are often administered to determine whether you were driving under the influence, might not be the most reliable indicators of driving impairment.

If a police officer pulls you over for a suspected DWI, he will gauge your driving impairment. The best way to do this is a blood alcohol test. Chemical tests are more reliable because they objectively and precisely evaluate the driver’s blood alcohol concentration (BAC) within the margin of error of both the testing method and the testing instrument. This is a more scientific approach to gauging your driving impairment.

However, field sobriety test are not as scientifically accurate as chemical tests; in fact, they are often very imprecise indicators of your sobriety or impairment. This is because a field sobriety test all comes down to the police officer’s subjective opinion of your sobriety when he or she does not even know how you would perform on these tests under normal circumstances.

Despite the subjective nature of these tests, field sobriety tests are frequently used by police officers in order to:
Give the Police Officer probable cause to stop or arrest you
Establish that you were physically or mentally impared at the time you were driving
Prove that alcohol was a direct cuase of your driving behavior
Among the different types of field sobriety tests are:
Asking you complex, distracting or interupting questions
Finger-to-Nose Test*
Finger Count Test
Saying or Writing the Alphabet*
Counting backwards from 100*
Tracing (Pen-on-Paper)
Romberg Balancing Test (Sometimes combined with Finger-to-Nose Test) *
Horizontal Gaze Nystagmus Test (HGN)
One-Leg-Stand Test
Line Walk
Hand Pat Test
Picking Up Coins
Standing from Heel to Toe

NJ DWI Non-Standardized FSTs*

Although the National Highway Traffic Safety Administration has only confirmed three field sobriety tests as valid indicators of intoxication, New Jersey DWI lawyers see all kinds of so-called “non-standardized” tests being used against their clients.

These tests have no real guidelines for how they should be administered, how instructions should be given, or how results should be interpreted. They haven’t been tested, or in some cases have been shown to be unreliable. Yet they are presented to jurors as if they have the full force of scientific evidence. A good New Jersey DWI lawyer will be able to attack the validity of these tests in court during cross-examination of the arresting officer.

If any of the three following non-standardized field sobriety tests were administered during your traffic stop, be sure to let your attorney know during your first meeting.

The Alphabet Test

Contrary to popular belief, New Jersey DWI suspects are not commonly asked to recite the alphabet backwards. Few people are able to do this normally—how could it possibly differentiate between sober and drunk test subjects? However, another form of “alphabet testing” is sometimes used. Test subjects are asked to recite either the full alphabet or part of the alphabet (starting at H and stopping at P, for example).

These tests have no real guidelines for how they should be administered, how instructions should be given, or how results should be interpreted. They haven’t been tested, or in some cases have been shown to be unreliable. Yet they are presented to jurors as if they have the full force of scientific evidence. A good New Jersey DWI lawyer will be able to attack the validity of these tests in court during cross-examination of the arresting officer.

If any of the three following non-standardized field sobriety tests were administered during your traffic stop, be sure to let your attorney know during your first meeting.

The Count Down Test

The count down test is similar in some ways to the alphabet test. In it, a subject is asked to count backwards from some number to some other number. In either the alphabet test or the count down test, a subject may be asked to stand heel-to-toe. This has no bearing on the validity of the test (which is non-existent to begin with).

The Finger-to-Nose Test

This is one of the more commonly known field sobriety tests, and it surprises some people to learn that it is not one of the standardized tests. In it, a subject is asked to close his eyes and alternate touching his left and right index fingers to his nose.

The New Jersey DWI Romberg Balancing Test

A knowledgeable New Jersey DWI lawyer will tell you that the use of the Romberg Test in law enforcement has been reviewed by many, particularly with regard to its reliability. The test requires its subjects to stand with their feet together and their arms down to their sides. Participants are to maintain that position while an officer provides them with further instructions. The subjects are then asked to tilt their heads back a little and close their eyes. Once everyone was in the required position, they are to remain that way with their eyes shut for 30 seconds. After the appropriate amount of time goes by, participants then bring their heads up, open their eyes, and tell the officer to “stop.”

The officer will then ask the participants to confirm how much time has actually passed. Once that time had been denoted, the statistics with respect to the precision of the time estimation, the amount of eye flutter and the amount of sway displayed is gathered.

Of the test studies that have been done, it was noted that all participants estimated the passage of 30 seconds within +/- 23 seconds. However, only 4.8% of the people estimated 30 seconds at exactly 30 seconds. Further, only 28.9% of those tested had no eyelid flutters, while over 71% displayed eyelid flutters. Also, 56.7% of participants swayed 1-2 inches, with approximately an equal allocation of the remaining percentage shared between those who swayed more than 2-4 inches and those who swayed less than one inch.

Nonetheless, any New Jersey DWI lawyer will tell you that this degree of variation is generally expected within the general population. Also, an increase in body sway can exist for a number of reasons, to include weight, age, and physical condition. Additional studies also appear to show that the Romberg test is undependable with regard to identifying individuals who have a 0.08% blood alcohol level. For example, in instances where drivers were in reality less than a 0.08%, four subjects were incorrectly arrested as having levels over 0.08%.

In 1853, Moritz Heinrich Romberg developed a test to make a diagnosis of diseases through the use of a balance assessment. Today, the Romberg test is utilized by clinicians as a non-specific test of neurological or inner ear dysfunction. These clinical tests have since been customized to be used by police officers when performing field sobriety tests. While it is not one of the standardized field sobriety tests, the Romberg test is broadly used by police departments to gauge whether a person was driving under the influence.

The standard Romberg test requires people to stand upright with their feet placed together, hands to their sides, and their head tilted back with their eyes closed. From this, several variations were born, to include standing heel-to-toe with the head back or standing in the standard position while engaging in the finger-to-nose test.

From a clinical point of view, a positive Romberg test actually means that there is a loss of balance. Also, in a clinical setting, the test is typically performed with the eyes open initially in order to create a performance baseline. However, in the world of law enforcement, the amount of sway that exists in a subject is considered to be in direct correlation with alcohol impairment without the establishment of a baseline. A knowledgeable New Jersey DWI lawyer can further advise you regarding the applicability of the test to your particular case.

However, the trustworthiness of the Romberg test essentially depends on whether or not a nexus exists between ordinary performance and alcohol-induced performance. The measurement of a typical baseline performance for the test participant is key to determining whether there is a deviation from normal performance and whether any change can be attributed to alcohol ingestion.

Because determining baseline performance is next to impossible in a law enforcement situation, having data that is in the normal range of performance for the general population is of utmost importance. Yet, it is a known fact that balance tests of all kinds tend to show large individual differences in the performance of sober persons.

Roadside Breath Tests v. Station Tests

There are two potential tests that a person may be subjected to during a DWI investigation and arrest: the roadside breath test and the station test. These tests are widely different and submitting to or refusing to take either one will have very different consequences.

Roadside Breath Test: PBTs

The roadside breath test is also referred to as a PBT, or portable breath test. It is not intended for use as evidence of impairment. Rather, officers use this test to determine a person’s BAC or blood alcohol content as probable cause to support an arrest. The PBT is not an accurate test. In fact, it is so unreliable that the Attorney General recently outlawed its usage by the police in Camden County.

You will not face any penalties if you refuse to take a PBT. The results of this test cannot be used as evidence in your DWI case.

Though there are a number of field sobriety tests that police officers may employ, only three are recognized by the National Highway Transportation Safety Administration (NHTSA): the walk-and-turn test, the horizontal gaze nystagmus test, and the one-leg stand test. These three tests make up the Standardized Field Sobriety Tests (SFSTs) battery and are frequently used by police in New Jersey for people suspected of DWI violations.

The NHTSA has recognized these tests as being possible indicators of drunk driving when administered in a controlled environment. However, the side of a busy highway or road is hardly a controlled environment. In reality, these tests are meant to be a screening tool, though police view them as pass/fail—fail, and you get arrested, regardless of any other factors.

Defenses Against Portable Breath Tests

In order for breath test results to be admissible in a DWI case, they must have been generated on a machine that has gone through rigorous testing and been approved by the Attorney General.

In any case where a police officer does use a portable breath test, an experienced attorney should be sure to file a motion to suppress the results. None of the portable breath tests that officers use have gone through the necessary testing and none have been deemed to be scientifically reliable in New Jersey. Therefore, the results should not be admissible as evidence in a DWI case.

It could also be argued that use of a PBT is actually an unreasonable search, as the suspected drunk driver is “searched” without a warrant prior to his arrest.

Portable Breath Tests and Implied Consent

Use of the PBT can cause additional confusion at the police station. Officers are required to read the implied consent warning to suspected drunk drivers before administering the official breath test. A suspect who has already taken the PBT may not know the difference between the two tests and could refuse the official test, thinking that the sample given at the roadside should be enough. Portable breath tests are only one of many facets of a DWI case that can be challenged by an experienced attorney.

Challenging a Field Sobriety Test

Although there are several variations of field sobriety tests, there are only three that are recognized as standard: the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. These tests must be given in a very specific manner; failure to do so can compromise the results. Test results can also be skewed by factors such as wind, bright lights from the police car or passing vehicles, and even certain medical conditions.

Questions for the Prosecution

Just as with any form of chemical testing, there are specific protocols and procedures that must be followed when conducting a urine test. In building a defense, your attorney should ask the following questions:

  • Was the urine sample taken in a lawful manner?
  • Was the sample’s chain of custody unbroken and properly documented?
  • Were all the machines used for testing properly calibrated and maintained?
  • Were the samples handled properly to ensure there was no contamination?
  • Was the sample stored properly?
  • Was the technician properly trained and certified?

A Drug Test is Not a Conviction

It is important to remember that a urine test alone cannot prove your guilt—that decision is left up to the judge. This is why it is important to have an experienced attorney on your side who knows how to challenge the test results and hold the prosecution and crime lab staff accountable.

There are No Automatic Convictions

Remember—just because you submitted to a blood test for BAC does not mean you will be convicted of DWI. The results of every blood test must be shown to be valid in court. However, it takes a highly trained attorney who is knowledgeable in blood testing procedures to be able to challenge the evidence and hold the prosecution accountable.

Attorney Steven Hernandez has been practicing DWI defense in New Jersey for over a decade, and he has taken intensive training courses in chemical BAC testing in order to better defend his clients in court.