Police may order DWI field tests on minimal suspicion

NJ Appellate Division permits the police to order DWI field tests on minimal evidence

The Appellate Division, an intermediate appellate court in New Jersey, confronted the standard of suspicion, or evidence of unlawful activity, which justifies a police officer in ordering a motorist to perform field tests in a potential DWI traffic stop. In State v. Bernokeits, A-3150-10, the Appellate Division held that a field sobriety test is similar to an investigatory stop (of short duration, limited in scope, and intrusion). As such, the Court rules that probable cause to order the motorist to perform the tests is not needed. In fact, the Court ruled that ‘probable cause,’ sometimes referred to as a fair probability that criminal activity is occurring or has occurred is not necessary to justify the stop and order to do the tests.

The Court, in Bernokeits, stated that a police officer must only demonstrate ‘ a reasonable, articulable suspicion (of unlawful activity), not probable cause,’ to order the field tests. To rule otherwise, the Court held, would “suggest that a police officer must turn a blind eye to new indications of more serious unlawful activity observed after stopping a vehicle for unrelated minor traffic violations.” The Appellate Division therefore upheld the DWI conviction of the defendant. In our view incorrectly, the Court likened the situation to the case governed by the distinction between investigatory stops and formal arrests set forth in the watershed case, Terry v. Ohio, 392 U.S. 1 (1968).

It will be interesting to see if the Supreme Court of New Jersey deals with this issue. Unlike Terry v. Ohio, 392 U.S. 1(1968), which dealt only with a quick surface pat down of an individual based upon a reasonable articulable suspicion that the person is armed (or has committed or is in the process of committing a crime,) here the Court is justifying government demands for the individual to perform a series of individual physical examinations over a greater period of time. The Appellate Division fails to adequately address the fact that a DWI is a motor vehicle infraction and not a criminal offense in New Jersey. A field test is based not on fear for the officer or public’s immediate safety during the test but is a forced demonstration for the officer to gather evidence of intoxication. The field tests take several minutes to be completed, not a few seconds, and demand action not passivity from the person. This is not acquiescence to a momentary brief pat down based upon reasonable suspicion that the person has a gun. Lastly, this far greater intrusion may be justified, at least at the beginning of the stop, by something as minor as a burned out bulb in a blinker.

Here, the Court’s justification misses the point of Terry and the 4th Amendment analysis in general. Terry is based upon the public’s and police officer’s immediate physical protection and safety, the frisk immediately confirms ordispels suspicion and danger, and incidentally may result in obtaining evidence of a crime.

Here, the field tests are a means to develop evidence of drunkenness to allow even greater intrusion by the police– their demand that the defendant submit to a breathalyzer test. Also, the Court’s stated reasoning-that to rule otherwise would suggest a police officer turn a blind eye to new evidence of more serious unlawful activity– can justify virtually any police intrusion if taken to its extreme. A final question: if this is a stop where the officer is simply trying in good faith to determine if additional evidence of unlawfulness (drunkenness) may result, what percentage of field tests result in police letting the motorist be on his or her way? If I was a betting man, I would say the percentage is so small to be insignificant.