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To perform roadside tests or refuse, that is the question.

Anyone who has ever been pulled over late at night and suspected of driving while intoxicated has been asked by the officer to perform roadside tests. If you are accused of DWI in New Jersey (aka DUI), you need an Long Branch DUI attorney who knows that these ‘tests’ are not ‘tests’ at all. Whether someone who performs these maneuvers is arrested or not depends entirely on the subjective opinion of the police officer.

The performance of field sobriety exercises is entirely voluntary. An officer may tell you that refusal will result in the automatic suspension of your license but that is not accurate. Willingness to take a scientific test such as a alcotest, or a blood or urine test if a alcotest test is not possible, is implied when you choose to get a driver’s license; refusal to take one of these scientific tests will result in the automatic suspension of your driver’s license. However, that ‘implied consent’ does not extend to having to perform field sobriety maneuvers; maneuvers which are merely tools used to build a case for your alleged intoxication. Most officers have already made their decision about whether to arrest someone for DUI before they ever ask an accused to perform field sobriety maneuvers. They make this decision based on how someone was driving prior to being pulled over and whether their eyes are red, watery or bloodshot when they first make contact, all of which could be explained by a driver who is tired, ill, having an allergy issue or has been dealing with uncomfortable contact lenses.

Though there are many maneuvers that are taught by the National Highway Traffic Safety Administration, there are three which are by far the most commonly used by police during roadside traffic stops.


Horizontal Gaze Nystagmus is a natural jerking of the eyes that occurs when a person looks to the side at extreme angles. When a person has been drinking, not only can they have difficulty smoothly following an object with their eyes but the jerking of the eyes can occur at lesser angles. For this maneuver, the officer will have the accused follow a pen with their eyes then the officer will form an opinion about whether the eyes smoothly followed the pen, whether the jerking starts prior to the eyes reaching a 45 degree angle, and whether the jerking is distinct at ‘maximum deviation’ (the extreme side angle of the eyes). The officer’s opinion cannot be substantiated even in cases where the entire encounter is on video because the video camera would never be close enough to the face of the accused for any juror to properly assess whether the officer’s opinion is accurate.  The HGN tests are not admissible into evidence in New Jersey, but they can be used to support an officer’s determination that he or she had a sufficient basis to arrest you on the suspicion of a DUI.

Walk and Turn

The Walk and Turn is a maneuver where the accused is asked to walk in a straight line taking nine steps touching heel to toe, heel to toe, then turn on one foot and return. While the accused is doing this, the officer is looking to see whether the accused starts to walk before the instructions are complete, keeps balance while listening to the instructions, stops, steps off the line, misses heel to toe on any step, makes an ‘improper’ turn, uses their arms to balance, or takes the correct number of steps. Keep in mind the officer is looking for evidence of what they already assume, that the accused is intoxicated. This means that even a person who naturally sways slightly while standing still, who pauses just for a second while taking a step, who steps off the line or misses hitting heel to toe by even a millimeter, would be assumed to be intoxicated. Even an entirely healthy person could easily do any of these things, especially in a stressful situation like being accused of a crime. Factor in that the accused also may have difficulty with balance, or be over-weight, or have inner-ear or a number of other health issues, the officer could easily misconstrue those legitimate issues as a sign of impairment.

One Leg Stand

In the One Leg Stand the accused is told to stand on one foot, lift their other foot 6 inches off the ground, and to count until told to put their foot down. The Officer will watch for 30 seconds to see if the accused sways, hops or uses arms to balance, or puts their foot down early. Whether someone is slightly swaying, or their arms are slightly moving to help with balance is far too subjective to be the basis of a proper opinion. Many people would not be able to stand on one foot like this for long, particularly if they have a medical condition such as a weak ankle or damaged equilibrium. Further, if the road is not entirely flat or the ground is not entirely dry, the officer’s opinion could be formed based on conditions that have nothing to do with impairment.  

Since the indicators of intoxication involved in the field sobriety maneuvers are subtle, subjective, and difficult to see even if videotaped, leaving the determination of whether an accused is exhibiting any of these indicators to an officer whose mind is already made up is far too dangerous. An accused should never be punished for declining to perform these voluntary maneuvers. An effective advocate must know the field sobriety maneuvers well enough to be able to not only explain to the court what each maneuver is supposed to show, but to explain the entirely innocent reasons someone might exhibit that exact same ‘clue’; reasons that have nothing to do with any alleged intoxication. Your freedom, your reputation, and your ability to drive to get to work in order to provide for your family, depends on it.

New Jersey DUI lawyer, Andres Mejer is available to speak to you regarding your situation and discuss your chances of success.  Call 888-695-6169 today.