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January 09, 2012

Reasonable Suspicion, Not Probable Cause, Required for Roadside Sobriety Tests

    On New Jersey Law

Recently, in the case of State v. Bernokeits, the Appellate Division held that police officers need only reasonable suspicion, and not probable cause, in order to perform standard, roadside field sobriety testing on a driver suspected of driving under the influence. This means that police officers have a much lower burden when asking drivers to perform standard field sobriety tests than what is usually required for arrests and searches. Reasonable suspicion is described as “a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.”

In Bernokeits, the driver was pulled over for “equipment violations.” Upon talking to the driver, the police officer stated that he detected an odor of alcohol. The officer then asked the driver if he had been drinking, the driver admitted to having a beer at a local bar. The officer, who apparently had a super-human sense of smell, testified that the alcohol he smelled had an odor more like hard liquor than beer. He then asked the driver to exit the vehicle and perform field sobriety tests. After attempting the tests, the driver was arrested and charged with driving while intoxicated in violation of N.J.S. 39:4-50.

At trial, defendant moved to suppress the field sobriety tests arguing that the officer did not have probable cause to perform the tests. The municipal court judge stated that the circumstances constituted a reasonable and articulable suspicion of DUI, which justified the officer conducting a further investigation by asking the defendant to perform the field sobriety tests.

Law enforcement officers are permitted to stop a vehicle for any violation of the traffic laws. Once they stop the vehicle, asking the driver to step out of the vehicle while presenting his credentials has been described as “de minimis.” However, the additional intrusion of asking a driver to perform roadside sobriety tests is a “seizure,” and implicates the Fourth Amendment protection against unlawful searches and seizures. Under the “Terry doctrine,” first proclaimed by the United States Supreme Court in Terry v. Ohio, brief investigatory stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal activity.

According to the Appellate Division in this case, asking a driver to perform field sobriety tests is more akin to a brief investigatory stop (where only reasonable suspicion is required), than an arrest, for which probable cause is required. The Court acknowledged that there is no “bright line” test to determine when an investigative stop becomes an arrest, courts look at several factors, including the temporal duration of the stop, the degree of fear and humiliation that the police conduct engenders, whether the defendant was transported to another location, and whether the defendant was handcuffed. Since, according to the Court, field sobriety tests do not last very long, do not require transporting the person, do not require handcuffing the person, they are more akin to an investigatory stop than an arrest.

While the Court also noted that the “fear and humiliation’ from roadside sobriety tests is minimal when compared to the law enforcement interest in ensuring public safety, many of my clients would disagree.

Nace Naumoski is a New Jersey criminal defense attorney, with offices in Elizabeth and Totowa.

Comments :


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You have the money - HIRE A CAB!Anyone who drives drunk is an idiot. It's droueangs enough on the road with the normal quota of distracted and bad drivers and other hazards - no need to add impaired by alcohol to the mix.


Very fortunate not to kill abodyny, including himself.Let's stop these unfortunate stories because he knew how many beers or wine classes he drank during management dinner. When dinner costs 4.000US it's not only for food.


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