Written by attorney Elliot S Stomel


There is no law in the State of New Jersey which requires you to perform roadside sobriety tests when you are stopped by the police for DUI/DWI. You can refuse to perform these tests, and not be issued a separate ticket for refusing to do so (as opposed to refusing the breath test, which is required by law). Unfortunately, police officers are not required to tell you that you do not have to perform these tests. Furthermore, despite the fact that the results of these tests will be used against you in Court, they are not considered “testimonial" in nature, so the Police do not have to read your Miranda warnings prior to performing these tests.

The State can convict you of DUI/DWI by (1) by proving that your blood/breath alcohol concentration is greater than 0.08%; or (2) by proving that your ability to drive a car is impaired due to drinking alcohol or taking certain drugs. When the breath/blood testing is suppressed or kept out of the trial due to errors in that testing, the State can still rely on its “observation" case to prove you were intoxicated. This may include a variety of things, beginning with the observations of the officer of how you operated your vehicle, the odor of alcohol on your breath, how you got out of your car (e.g. did you grab onto the door for support?), and your ability to walk, talk or simply just stand without swaying, staggering or falling. The officer may also request that you perform actual tests, such as standing with your feet together with your head back and eyes closed. Tests such as these are designed to fail. An officer may also request that you recite the alphabet. Believe it or not, even sober people sometimes have problems reciting the alphabet correctly when they are placed in stressful situations like being placed under arrest.

While the actual tests given may vary, there are three tests that have been scientifically validated as being reliable based upon a study performed by the National Highway Traffic Safety Administration (NHTSA). They are:

  1. The One-Leg Stand: If instructed properly, this test has a 65% reliability of predicting that a person’s BAC is 0.10% or greater;
  2. The Walk and Turn and Test: If instructed properly, this test has a 68% reliability of predicting that a person’s B.A.C. is 0.10% or greater. and
  3. The Horizontal Nystagmus Test (HGN): However, the courts in New Jersey have excluded this test as being “non-scientific", and it cannot be used as proof that you were under the influence of alcohol or drugs.

The fact remains that almost any test can be used by an officer on the roadside for the purpose of determining whether you are under the influence of alcohol or drugs. However, the testing must be fair. It is up to your attorney to challenge the validity and reliability of this testing.

Free Q&A with lawyers in your area

Avvo DUI email series

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer