When the police stop you on suspicion of driving while intoxicated (DWI) in New Jersey, they will typically ask you to take the breathalyzer and the field sobriety tests (FSTs). While these are often discussed together, they are very different, and, if you are facing a DWI charge, it is important to understand how each can impact your case. Find out what you need to know from an experienced New Jersey DWI lawyer at Helmer, Conley & Kasselman, P.A.
3 Key Differences Between the Breathalyzer and FSTs
There are several important differences between the breathalyzer and the FSTs. Here are three of the most important differences of which you need to be aware:
1. Only the Breathalyzer is Mandatory (But Only if the Police Comply with the Law)
If the police stop you on suspicion of DWI, you are required to provide a breath, blood, or urine sample to test your blood alcohol concentration (BAC). This is a requirement under New Jersey’s “implied consent” law. Provided that the police comply with the law during your DWI stop, you must either take the breathalyzer or provide a blood or urine sample upon request.
New Jersey’s “implied consent” law does not apply to the FSTs.
Even if the arresting officer asks you to do so, you are not required to take the FSTs under any circumstances. You have the right to refuse, and, if you refuse, the police cannot force you to take the tests. However, if you take the tests voluntarily—even if you didn’t realize you had the right to refuse—prosecutors can use your test results against you in your DWI case.
2. Refusing the Breathalyzer Can Lead to a “DWI Refusal” Charge, But Refusing the FSTs Can’t
Since providing a BAC reading is mandatory in New Jersey, if you refuse to take the breathalyzer, you can be charged with an “implied consent” violation, which is also commonly referred to as a DWI refusal. Even if you aren’t guilty of DWI, being found guilty of a DWI refusal can lead to a driver’s license suspension, fines, and other penalties.
However, since the field sobriety tests aren’t covered under New Jersey’s “implied consent” law, you cannot be charged with a DWI refusal for declining to take the FSTs. As we mentioned earlier, you have the right to refuse, and if you do, this decision cannot be used against you.
3. Your High BAC and Your FST “Failure” Have Different Implications in Court
Another key difference between the breathalyzer and the FSTs is that they have very different implications for your DWI case in court. Under New Jersey law, if your BAC is over the legal limit (which is 0.08 percent for non-commercial drivers over the age of 21), this alone is enough to warrant a DWI conviction.
But, even if you “failed” the FSTs, if prosecutors don’t have your BAC (either because you refused or because your BAC reading is inadmissible in court), your “failure” isn’t necessarily enough to prove that you are guilty. In this scenario, prosecutors must be able to prove that you were “under the influence” of alcohol—and they must be able to do so beyond a reasonable doubt. As we discuss below, there are several potential issues with the FSTs that can serve as defenses to a DWI charge in New Jersey courts.
3 Key Similarities Between the Breathalyzer and FSTs
While there are several important differences between the breathalyzer and the FSTs, there are also some key similarities between these tests. For example:
1. The Police Can Improperly Administer the Breathalyzer and the FSTs
In order for breathalyzer and FST test results to be accurate (and admissible in court), the police must administer these tests correctly. However, various issues can lead to the improper administration of both types of tests. When you hire an experienced New Jersey DWI lawyer to represent you, your lawyer will be able to examine the procedures that the police followed when administering the tests to determine if this is an issue that you may be able to raise in court.
2. Prosecutors Can Secure a Conviction Without One or the Other
As we said above, if prosecutors have your BAC, they don’t need your FST results to secure a DWI conviction. If your BAC was over the legal limit when you were driving, this is all prosecutors need to seek a guilty verdict in court.
Similarly, if prosecutors can show that you “failed” the FSTs but they can’t use your BAC against you, they may still be able to secure a conviction by proving that you were “under the influence” at the time of your arrest. However, your FST results won’t necessarily be enough on their own, and you may be able to challenge your FST results on various grounds.
3. There Are Defenses to Failing Both Tests
This brings us to our last point: There are several potential defenses to failing both the breathalyzer and the FSTs. As a result, regardless of the evidence prosecutors have against you, you can—and should—fight your DWI. An experienced New Jersey DWI lawyer will be able to determine what defenses you can assert—whether this involves challenging the reliability of your BAC reading, challenging the arresting officer’s administration of the FSTs, or asserting your constitutional rights to keep the prosecution’s evidence out of court.
Request a Confidential Consultation with a New Jersey DWI Lawyer at Helmer, Conley & Kasselman, P.A.
Do you need to know more about fighting a DWI charge in New Jersey? If so, we encourage you to contact us promptly so we can help. To request a confidential consultation with a New Jersey DWI lawyer at Helmer, Conley & Kasselman, P.A., please call 877-435-6371 or let us know how to contact you online.
