Standard Field Sobriety Test, the Walk and Turn

June 5, 2018 by Edward Janzekovich

Police officers in New Jersey and in other states across the country use many tests to see if a person has been driving intoxicated. You may be familiar with some of the tests, either through personal experience or having seen them on tv, such as having a driver close his or her eyes and touch his or her nose with one finger, or reciting the alphabet backwards. While parts of these tests may help influence a police officer into believing whether a person has been driving drunk, there are only three official tests that are part of the Standardized Field Sobriety Tests (SFST), developed and approved of by the National Highway Traffic Safety Administration (NHTSA), and admissible in court:

The Horizontal Gaze Nystagmus Test
The Walk and Turn
The One-Leg Stand

The officers who administer these tests are trained to look for certain clues in a driver. Similar to the Horizontal Gaze Nystagmus Test, which we previously discussed here at the Edward M. Janzekovich Law Blog, there are specific things that an officer considers signs of intoxication when it comes to the Walk and Turn test. At the same time, many of the clues are considered subjective. For that reason, it is important that you retain an experienced attorney if you are ever arrested for a DUI. A knowledgeable DUI/DWI attorney will be able to review the records and possibly identify weaknesses in the intoxication evidence to defend against it at trial or maybe even have it thrown out completely.

The Walk and Turn Test

In the walk and turn test, a driver is told to place his left foot on a line – possibly a line painted in the road or drawn by the officer – and then place his right foot in front of the left foot, touching heel to toe, one foot after another for a given number of steps. The driver must place his or her arms at his or her sides – meaning the driver cannot extend his or her arms for balance. The driver is then expected to remain in this “Instructional Position” while the police officer explains the test instructions. The driver cannot start the test until police officer states, “Begin.”

The standardized instructions are:

“When told to begin, you will walk nine heel to toe steps, turn, and take nine heel to toe steps back”;
“During the turn, keep your front foot on the line, and execute the turn by taking a series of small steps with your other foot”;
“While walking, keep your arms at your sides, watch your feet at all times and count out loud each step”;
“Do not stop until you have finished the test.”

The officer will then ask if the driver has any questions before telling the driver to begin.

What Police Officers Are Looking for When Performing the Test

When a police officer gives the test, he or she is actually watching the driver for signs of intoxication long before the officer says, “begin.” This means that the real test begins with the officer’s observations long before the driver takes his or her first step.

The officer is specifically looking to see if the driver:

Keeps his or her balance at all times;
Remains in the “Instruction Position” while listening to the instructions, and does not begin until instructed;
Does not stop in the middle of the test;
Touches heel to toe for each step;
Stays on the line for all of the test;
Uses his or her arms for balance, which is not permitted to be raised beyond six inches;
Does the turn as instructed; and
Takes the correct number of steps.

If the driver misses heel to toe once with a gap greater than 1/2 inch, the officer will check off one clue of possible intoxication for the heel-to-toe requirement.

How a Lawyer May Challenge the Walk and Turn Test

Because officers are trained to analyze a driver’s behavior, appearance, and how he or she performs on any SFST, a good lawyer can also use this same information to help in defending against a DUI/DWI conviction. Because these tests are not perfect and subject to human error, it is important to always consult an experienced lawyer if you or someone you know is charged with drunk driving. A DUI attorney may be able to fight the charges against you or have the charges dismissed completely.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Is Ready to Help Drivers Charged with Drunk Driving

An arrest for driving under the influence of alcohol or drugs is extremely serious, and the penalties can include fines, loss of driving privileges, and even jail time. Defending against drunk driving charges can also involve complicated evidentiary issues, especially when specific tests or scientific evidence is involved. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: DWI - DUI, Field Sobriety Tests

Potential New “Breathalyzer” That Can Detect Marijuana Use While Driving

October 17, 2016 by EMJanzekovich

Stanford University recently announced that they have successfully developed a device to measure the amount of marijuana in a person’s body. Unlike a traditional breathalyzer, which can measure the amount of alcohol in your breath to determine your blood alcohol content (BAC), the new device called a “potalyzer” can measure the amount of tetrahydrocannabinol (THC) in your saliva. Although this is not yet being used by law enforcement in New Jersey, it is extremely important because it means that police may soon have a scientific way of testing to see if you have been driving under the influence of drugs like marijuana simply and quickly. The timeline for implementing this or another similar test may move very quickly, because it is possible that lawmakers will consider legalizing small quantities of marijuana for medicinal or even recreational use in the future.

Developed by Dr. Shan Wang of Stanford University and his team, the potalyzer uses magnetic biosensors to detect THC molecules in saliva. Reports indicate that the new tool is accurate enough to detect as little as 0 to 50 nanograms of THC per milliliter of spit. This is big news, especially for states where marijuana use has been legalized. While those states continue to have DUI/DWI laws outlawing driving while impaired (this includes via marijuana use), up until now, law enforcement have had difficulty prosecuting such a crime, because they could not prove when or how much marijuana someone has consumed. Unlike alcohol, THC (marijuana’s main psychoactive component) remains in one’s blood much longer than alcohol, meaning you could still test positive for marijuana use even if the marijuana is no longer affecting your ability to drive.

For states like New Jersey, where marijuana laws are much stricter, the new potalyzer could actually increase the likelihood that marijuana will be legalized for additional uses, because the inability to enforce marijuana DUI laws will be less of an issue. Now, by being able to measure THC levels, not just its presence, science can begin to correlate certain levels with driver impairment and then create impairment standards. This is essentially like BAC laws that exist for alcohol, but based on the amount of marijuana in a person’s saliva.

Like the breathalyzer, the potalyzer may also prove popular because it does not require taking a blood sample or involve other extremely invasive measures. The test involves mixing some of a driver’s saliva with antibodies that bind to the THC molecules and act as markers. The sample is then spread on a test strip that’s been pre-coated in THC and loaded into a handheld measuring device, to determine how much unbound THC remains. By doing this, the system can accurately estimate how much THC was present in the driver’s saliva, and the results can be displayed quickly.

Interestingly, researchers suggest that this new technology can also reportedly be applied to almost any small molecule including morphine, heroin, methamphetamine or any number of controlled dangerous substances. Because many drugs are used by smoking or inhaling, this new technology could lead to a number of quick, saliva-based drug tests in the future that will affect how driving under the influence of drugs (DUID) laws are enforced.

The Need for an Experienced DWI / DUI Attorney

Obviously, before this test is implemented anywhere, further research will be needed to see how a driver’s tolerance impacts his or her ability to handle different amounts of THC to determine specific legal limits. With this new device, however, it will likely come sooner rather than later. Regardless of whether or when this device is implemented, New Jersey law still holds that if you have used a substance that would change your normal physical coordination or mental abilities to the point that you can be considered a danger to yourself or others on the road, then you may be charged with DUID. The consequences of driving under the influence of drugs are very serious and can include fines, loss of driving privileges, or even jail time.

Because DUID laws are always changing, a DUI attorney will be able to take the time, sit down with you and review your case, and explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer can help argue on your behalf to get you the best result possible.

New Jersey DUID Attorney Edward M. Janzekovich Can Explain and Fight for Your Rights

Because defending against charges of driving under the influence of drugs can be very complicated, it is important to get an experienced DUI/DWI attorney in any situation where you or someone you know is charged. If you are charged with driving under the influence of drugs or alcohol in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Driving Under the Influence of Drugs, Driving Under the Influence of Marijuana, Field Sobriety Tests

Your Right to Discovery When Charged with a DUI / DWI

September 7, 2016 by EMJanzekovich

In New Jersey, the law states that if you are charged with driving under the influence of drugs or alcohol, you are entitled to discovery in your case. That means that you are allowed to request all the evidence held by the prosecution that is relevant to your situation. In State v. Utsch, the New Jersey Superior Court Appellate Division ruled that a defendant is entitled to discovery in any case where he or she may be imprisoned or subject to serious consequences – and a DUI / DWI conviction is subject to severe penalties in the form of possible imprisonment, extensive fines, and almost assuredly will result in some period of license suspension.

How Do You Obtain Discovery?

Obtaining discovery is a relatively simple procedure, because the law provides for discovery in any DUI/DWI case. In order to receive the relevant evidence, all you need to do is make a proper written demand upon the prosecutor, and an experienced DUI attorney will know how to request discovery, who to request discovery from, and what discovery to request. Importantly, the law requires that the demand for discovery be made at the same time that the DWI attorney enters his or her appearance with the Court.

What Evidence Are You Allowed to Obtain in Discovery?

The Court Rules limit the scope of discovery in a drunk driving case to relevant materials, which means the evidence must reasonably be usable to assist in the defendant’s case. Relevant evidence includes:

Records of statements, confessions, or admissions made by the defendant;
Recorded grand jury proceedings;
Results or reports of any physical or mental examinations and of scientific tests or experiments made in connection with the matter;
Records of the defendant’s prior convictions;
Photographs or images related to the case;
Video or sound recordings related to the case;
Names, addresses, and statements of any witnesses or other persons who know relevant evidence or information;
Any police reports;

Furthermore, in the case of State v. Chun, the New Jersey Supreme Court outlined the discovery permitted in a DUI case involving an Alcotest or breathalyzer test, which includes:

New Standard Solution report of the most recent control test solution change, and the credentials of the operator who performed that change;
Certificate of Analysis for the .10 percent solution used in the Report;
Draeger Safety Certificate of Accuracy for the Alcotest CU34 Simulator;
Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe;
Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument;
Calibration Records;
Certificate of Analysis for the .04, .08, .10, and .16 percent solutions used in Calibration;
Draeger Safety Ertco-Hart Calibration Reports; and
Additional standard items of Alcotest discovery including the alcohol influence report and worksheet.

When Are You Entitled to Discovery?

The New Jersey Court Rules require a prosecutor to respond to a Discovery Request within 10 days of receiving the request, although this does not mean the prosecutor must deliver all the evidence in that time. Usually, the prosecutor will respond by informing the defense attorney that a request for the evidence has been made to the proper police records clerk for processing and transmission. The prosecutor is then responsible for providing complete discovery or for providing the defendant with a list of the evidence that is missing with an explanation of why it has not been handed over.

If discovery is not provided by the prosecutor, and an attempt is made to reach an agreement on discovery issues, a defendant may make a formal motion with the Court for relief, which can include a Court order that would prohibit the prosecution from using the undisclosed evidence later on. A defendant may also be able to make a motion to limit the time in which evidence must be handed over, and if it is not provided within the time limit, the case may be dismissed or thrown out. For this reason, it is especially important to always consult an experienced DWI / DUI lawyer if you are pulled over and charged with drunk driving. An experienced DUI attorney will know the best way to defend against the charges or have the charges dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Knows What to Do If You Are Charged with DUI / DWI

A DUI/DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or a href=”/contact/”>contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Drunk Driving, DWI - DUI, DWI & DUI Checkpoints, Field Sobriety Tests

Whether You Are Functional or Coordinated During a Sobriety Test is Not a Defense Against a BAC Over 0.08%

August 31, 2016 by EMJanzekovich

Some people have the ability to have a few drinks and still be relatively well-coordinated – sometimes referred to as being a “functional drunk.” Such individuals may even be proud of the fact that they can be drunk and still perform regular activities. This ability may even extend to the person’s performance on a field sobriety test, if he or she is pulled over. Regardless of whether or not a person is completely successful on a field sobriety test, however, his or her performance will not be admissible to rebut a blood alcohol content (BAC) reading of over .08%. For that reason, it is important that you never drive drunk, even if you think you are okay and it won’t affect your driving at all.

Field Sobriety Test and Video Evidence

If you are pulled over for and suspected of drunk driving in New Jersey, one of the things a police officer will probably do is ask you to perform a series of movements that make up a field sobriety test – including walking in a straight line, following a flashlight with your eyes, holding out your arms and touching your nose with one finger, or counting while standing on one foot. It is also very likely that the officer will make a video recording of your performance on this test.

Because you can be on video every time that you are pulled over, it is important to remain polite and compliant, in case the video is later viewed by a judge or admitted as evidence in a trial. One of the ways the state may attempt to prove that you were driving drunk is by presenting evidence that you failed your field sobriety tests. Therefore, your performance on any field sobriety test, as well as your ability to speak to the police officer and answer questions, can help in your defense against a DUI/DWI conviction.

Field Sobriety Test Performance Does Not Rebut a BAC of 0.08% or Greater

At the same time, in the case of State v. Tischio, the Court concluded that a breathalyzer test result of 0.08% or greater, within a reasonably period of time after the operation of a vehicle or arrest, is conclusive proof of guilt. This means that a properly taken BAC of 0.08% or greater is a per se violation of New Jersey’s law against drunk driving, and this cannot be rebutted through other evidence.

Therefore, even if you perform really well on a field sobriety test – including if you manage to keep your balance when standing on one foot, walk in a straight line perfectly, and otherwise have no trouble speaking with a police officer and answering questions – you can still be convicted of a DWI/DUI. This is because the state can prove that you were operating a vehicle under the influence of alcohol two different ways – through BAC evidence and through evidence of your inability to pass a field sobriety test. Any evidence of how you performed on a field sobriety test cannot be admitted to dispute the BAC reading, which can only be challenged through other defenses that are specific to how and when the breathalyzer or BAC test was performed.

At the same time, a BAC reading is not always perfect. There may be ways to challenge breathalyzer test results and have them excluded, at which point your performance on a field sobriety test can become very important. For that reason, it is especially important to always consult an experienced DWI/DUI lawyer if you are pulled over and charged with drunk driving. An DUI attorney may be able to fight the charges against you or have the charges dismissed completely.

Contact New Jersey Drunk Driving Attorney Edward M. Janzekovich

A DUI/DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Criminal Law, Drunk Driving, DWI - DUI, Field Sobriety Tests

New Jersey DWI – DUI Lawyer Edward Janzekovich – DUI – DWI Checkpoints

February 23, 2016 by EMJanzekovich

In general, police officers in New Jersey can only stop a vehicle if they have a reasonable suspicion that an offense has been committed. They must also be able to specifically describe the grounds for their suspicion. Despite this constitutional protection against unreasonable searches and seizures, police may randomly stop drivers at sobriety checkpoints (also called roadblocks) even if they have no reason to believe that anyone in the vehicle committed an offense. Because random checkpoint stops are such an intrusive law enforcement technique, the police must be able to show a rational basis for establishing the roadblock. There are strict requirements for both setting up and executing roadblocks.

What To Expect At A Sobriety Checkpoint

As you approach a road block, you should see signs and lighting designating the checkpoint area. You will be required to slow down and wait for your turn to be processed through the checkpoint. Police officers will detain drivers in a pre-selected pattern (for example, every driver or every fifth driver). Drivers cannot be stopped on their appearance alone.

If you are stopped, you will be detained for a brief period of time. Police may ask basic questions, request documentation and look for signs that you are under the influence of drugs or alcohol. If you exhibit these signs, you will be asked to move your car to a separate area where you will be asked to undergo a field sobriety test.

Roadblock Requirements

The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures. This means that if police do not follow the proper procedures for setting up and executing a roadblock, any evidence obtained may be inadmissible in court—including breathalyzer or blood test results. Courts will consider various factors in determining whether a roadblock was proper, including:

Whether notice of the time, date and location of the roadblock was published in advance
Whether advance warning was given to individual approaching motorists (use of lights, signs, etc.)
Whether statistical data demonstrates that the roadblock was set up in a particularly problematic location for drinking and driving
Whether public safety and awareness are fostered by the checkpoint
The time of day when the roadblock is conducted
Average length each motorist is detained
Whether less intrusive measures could have been used to combat drunk driving in the area

Police officers and state troopers do not have the authority to select a DUI checkpoint location or time. They must first receive a directive from their commanding officer.

What Happens if I Attempt to Evade a Roadblock?

If you are intoxicated and attempt to evade a properly established road block, this may give police sufficient reasonable suspicion to stop your vehicle.

New Jersey DUI Lawyer Edward M. Janzekovich Represents Drivers Who Have Been Charged With DWI at Police Roadblocks

State and federal laws carefully protect the rights of citizens to be free from unlawful searches and seizures. If you were stopped at a sobriety checkpoint and arrested for driving under the influence, New Jersey DWI lawyer Edward M. Janzekovich will obtain all documents relating to the establishment of the road block, and analyze it to determine whether it was legal. I will also look at the circumstances surrounding your stop to determine whether police followed proper procedures and detained you for a reasonable amount of time. Unreasonable detentions raise different constitutional issues and may provide you with additional defenses.

We proudly serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County. To discuss your case, call us at 732-257-1137 or contact us online today.

Filed Under: Drunk Driving, DWI - DUI, DWI & DUI Checkpoints, Field Sobriety Tests, Illegal Searches and Seizures, New Jersey Attorney, New Jersey Search Without Warrant Tagged With: blood alcohol test new jersey, checkpoints new jersey, DUI – DWI Defense Attorney, dui attorney, dui checkpoints new jersey, dwi attorney, dwi checkpoints new jersey, East Brunswick DWI Attorney, new jersey blood alcohol testing, new jersey dui attorney, new jersey dui refusal, new jersey dui roadblock, new jersey dwi checkpoint, new jersey roadblock sobriety checkpoints, nj roadblock dwi checkpoints, Union Township DUI DWI, Union Township NJ DWI Attorney, unreasonable searches and seizures, unreasonable searches and seizures dui, unreasonable searches and seizures dwi, unreasonable searches and seizures new jersey

Field Sobriety Tests in New Jersey

February 16, 2016 by EMJanzekovich

New Jersey DWI – DUI Lawyer Edward M. Janzekovich

Field Sobriety Test Attorney in New Jersey

When you think of getting pulled over for suspected drunk driving, you might think of police administering a breathalyzer test to determine whether you are intoxicated. Or you might think of the more “old school” field sobriety tests depicted in so many movies, where police ask a driver to walk in a straight line, follow a flashlight with their eyes, or count while standing on one foot.

In New Jersey, law enforcement officers are supposed to conduct both types of testing. A field sobriety test is often given first at the side of the road, so police can build probable cause to conduct a breathalyzer test later at the police station or take you to the hospital for a blood test. Another reason police have you perform field sobriety tests is because it is used to serve as “backup” evidence in case the breathalyzer results are later found to be inadmissible. However, the results of field sobriety tests are also often inadmissible, because so many factors can invalidate results.

The National Highway Traffic Safety Administration (NHTSA) has developed three specific tests that, if performed properly, are considered reliable evidence of intoxication, but only two of them can be admitted as proof of intoxication in New Jersey:

The Horizontal Gaze Nystagmus (HGN) Test

In performing this test, officers will ask the driver to follow a small object, usually a flashlight or pen, with their eyes. In order for results to be accurate, the object must be held 12-15 inches away from the face and just above the eyes. Not all individuals are appropriate candidates for this test. An officer should check for equal pupil size and other indications that the driver may have a medical disorder, head injury or visual impairment, in which case the test should not be administered. In New Jersey, this test is not considered scientifically reliable and it cannot be admitted as proof of intoxication at trial.

The Walk and Turn

This test involves walking a straight line, heel to toe. Signs of impairment include not keeping balance while instructions are being given, starting before the officer instructs you to, stopping while walking, missing the heel to toe step, stepping off the line, using arms to balance, turning improperly or taking the wrong number of steps. Certain factors create good reasons for challenging the results of this test—for example if a person has balancing problems, is overweight, elderly, wearing high heels, has a knee injury, or if the test is conducted in a bad area such as poor lighting, garbage in the road, or an uneven road surface.

The One-Leg Stand

Officers will require a driver to stand with his or her arms down, and lift one foot six inches off the ground with pointed toes, looking down at the raised foot while counting out loud (one thousand and one, one thousand and two, one thousand and three, etc.) for thirty seconds. Signs of impairment include swaying, use of arms to balance, hopping or putting down a foot. Again, many people are not good candidates for this test. Advanced age, health conditions, inappropriate footwear or terrain all call the reliability of this test into question.

There is no statutory penalty for refusing to perform a field sobriety test, however if you do refuse, a judge is allowed to treat your refusal to do them as if you were too drunk to do them, so make sure you do the tests if asked.

On paper, these field sobriety tests seem simple enough. But are they? It’s late at night, you are tired, police cars are flashing lights, you are surrounded by police with flashlights pointed at you. It quickly becomes a very intimidating experience as you are wondering to yourself if you are going to lose your license and go to jail. This is exactly why if you find yourself in this situation, you need to contact us immediately.

Top New Jersey DWI Lawyer Edward M. Janzekovich Defends Against Invalid Field Sobriety Test Results

Hiring the right New Jersey drunk driving lawyer can mean the difference between a life altering conviction, or a mere bump in the road of your life. To discuss your case, call us at 732-257-1137 or contact us online today. We serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

Filed Under: Criminal Law, Drunk Driving, DWI - DUI, Field Sobriety Tests, New Jersey Attorney Tagged With: DUI – DWI Defense Attorney, dui attorney, East Brunswick DWI Attorney, Field Sobriety Tests, Field Sobriety Tests Attorney, Field Sobriety Tests DUI, Field Sobriety Tests DWI, Field Sobriety Tests New Jersey, new jersey drunk driving attorney, nj dwi attorney, Union Township DUI Charge, Union Township DUI DWI, Union Township NJ DWI Attorney

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