Defense of New Jersey
DWI and Criminal Cases

DWI Laws in New Jersey

Did You Do Any Test On The Road?

After you were signaled to stop your vehicle, you were asked to step out of your vehicle. Then the police officer probably asked you to perform some tests on the road. Did you do any of these tests? Since how you performed on those tests will be evidence to prosecute you in court (see "Evidence Used in Court"), it is very important to know what the tests are. As I explain in 10 Things To Do When Arrested for DWI, I recommend that you do NOT do any of those tests on the road. The roadside tests are not required by law in New Jersey. Breath tests, following a warning about refusing, are legally coerced by laws imposing penalties for refusal. There is no additional penalty for refusing any tests on the road. One should politely decline to do any roadside tests or to answer any questions about drinking alcohol. Many, though not all, police officers have already decided to arrest for breath testing at the point when a driver is asked to step out of their vehicle. In many cases, roadside tests are used to gather biased evidence against a driver, not to give the driver a chance for release.

It is always better to minimize the information that can hurt you in court. The following are some examples of road tests often conducted and used as evidence for alleged intoxication in New Jersey.

1. Preliminary Breath Test (PBT)

This is a screening breath test that is often used on the road. It is used to give a police officer a threshold level of alcohol consumption before the officer takes the driver to the police station. It looks like the medication in a plastic container that asthma patients use. When you blow into this product, you will get a BrAC on site. This result is used to develop probable cause for arrest.

2. Horizontal Gaze Nystagmus (HGN)

You will be asked to follow the pen with your eyes. The officer is looking if your eyes exhibit any evidence of intoxication: when alcohol is present, eyes allegedly make "bouncing" movements. The office will conduct tests for each eye, probably starting with your left. The officer will bring the pen to the left, center, and may hold it in one particular position far away so that he or she can record how you perform. You, as a subject, will not know if your eyes are making subtle movements since your vision will not be affected by such movements.

3. One Leg Stand

The police officer will ask you to stand with one leg in order to see how intoxicated you are. You need to follow the officer's instruction throughout, but you are usually asked to hold your foot up from the ground while the officer explains the procedure. The officer will be looking at if you put your leg down, sway, move your arms, etc.

4. Walk and Turn

You will be asked to stand up straight while you listen to the officer's instructions. The officer will tell you to walk on a "straight line", with toes and heel touching. In many circumstances, there is no straight line that the subject can walk on. So the officer will instruct to walk on an "imaginary straight line". You may be asked to count steps as you walk. As you reach the maximum number of steps, you will make a turn. The officer is looking for a sign of intoxication throughout. You will be monitored if you move while you stand, step out of a line, or sway.