Carl: Well, there are three standard field sobriety tests that I’m always looking for when I review the police reports. They should be doing what’s called an HGN, which is the horizontal gaze nystagmus test. This test involves checking your eyes to see if there’s a quiver or a movement in the eye at certain thresholds, to the right and to the left. A nystagmus, which is a shaking of the eyeball, is an indication that there’s alcohol present in your system.
Interviewer: Is that the test where they say follow my pen and if the pen goes off to the side and then a certain part of your eyes jerk it means this person may be impaired.
Carl: That’s exactly right. That’s exactly the test. The other thing about the HGN test is, and about all the field sobriety tests, is whether or not the person who they’re administering it to can follow the directions. So, they’ll tell the person don’t move your head just follow the pen with your eyes. If the person keeps moving their head that might be an indicator to the officer that their attention is not quite what it should be. Even though they’ve never met them before.
Interviewer: Can people refuse these field sobriety tests without penalty?
Carl: I’ll answer that and then I’ll go back to the other field sobriety tests.
Refusing the Field Sobriety Tests
Carl: People can refuse field sobriety tests, and I find that to be very rare if at all in the state of New Jersey. Because what’s happening is you just got pulled over and you are now in this state of nervousness. Your whole body is now consumed with what’s going on, and you’re very nervous. Also, it is human nature not to offend anybody.
You want this to be over as quickly and easily as possible. So, once the officer says these magic words “sir have you been drinking” or “ma’am how many drinks did you have?” very often people will be extraordinarily honest.
To the extent that everyone says I had two beers, I had three glasses of wine. No matter what they drank that night. So, they’re not really being honest but they’re admitting to doing something that they probably shouldn’t. That leads me to whether or not you can refuse to do the field sobriety tests. The answer is you can.
What usually happens though after the officer has pulled you over, and they asked you whether or not you’d been drinking, you probably admit that you have. Which, of course, for most of us, if you’re over the age of 21, drinking and driving in moderation is not against the law as long as you’re not impaired.
By Carl Spector