Okay. Is there a reason why you're swerving all over the road? >> Swerving all over the road? >> Yes. >> Um well, your lights were really bright >> Before I even was behind you, you were swerving coming at me. >> Um I don't remember that. >> [music] >> New Jersey, late night, a driver pulls over voluntarily, she says, and what the officer observes in the next 14 minutes will end with handcuffs. On September 11th, 2024, New Jersey officers documented lane deviation in a curb strike before initiating a DWI investigation. The subsequent breath test returned 0.138% 72% above the legal limit. Terry versus Ohio requires reasonable articulable suspicion before any investigative stop specific observable facts indicating a violation. Documented lane deviation and a curb strike satisfy that standard. And every subsequent action rests on that constitutional foundation. >> How's it going? >> Hi. >> Can you have your license, registration, and insurance for me? >> I do. I pulled over because your lights were so bright. They were bothering me. >> Okay. Do you have your registration? >> What is that? >> Oh, that's your insurance, I meant. Your insurance. >> Um it's probably on my phone. >> Where are you coming from tonight? Where are you coming from? >> Well, I was at my friend's house in Pennsauken. I just took a drive cuz I was bored and I wanted to listen to music and drive, and that's how I make friends. >> Okay. Is there a reason why you're swerving all over the road? >> Swerving all over the road? >> Yes. >> Um well, your lights were really bright >> Before I even was behind you, you were swerving coming at me. >> Um I don't remember that. I just when your lights were in my rear view I couldn't see and I hit the curb and I was like, "Jesus, this person is like so bright." So, I pulled over to let you pass me. >> Okay. >> I didn't realize you were like a cop. I was like, "This person's like up my ass, their lights so bright." That's why I pulled over. >> Yeah, I was I was that close to you cuz you're all over the road. Do you have proof of insurance? >> Yeah, I have to find it. I don't have like a hard copy. >> Can you pull it up with the app? >> I know, I don't have the app. app. I'm not very technologically challenged and I have to do these things on the app. But, I hope you don't lose my phone. >> All right. Sit tight, all right? Uh, can you shut the vehicle off for me? >> Yeah. >> All right. Hang tight. >> Did you find the insurance? >> Well, I just like put it on my dashboard and something changed, but can you find like where you >> Yeah, right there. October 26th, 2024. Okay, cool. Um, and if you can, you're just going to step out of the car for me, all right? >> Yeah. >> We're going to do some testing to make sure you're okay to drive. >> Okay. >> Did you have anything to drink tonight? >> No. >> Okay. Given this, then this shouldn't be a problem. You hold that for me real quick. So, we're going to go on the sidewalk, all right? >> Yeah. >> Do you have any head injuries? >> No. >> Uh, you can face me. Um, anything wrong with your eyes, anything like that? >> No. >> Yeah. Uh, Dave, can you cut my flashlights? So, the first test is HGN, right? It's um, >> it's called HGN. >> Okay. >> So, you're going to look at this pen >> Okay. >> and you're going to follow it with just your eyes only, all right? As I tell you to. >> Okay. >> All right, so no movement of the head. You're literally just following it with your eyes, okay? All right, you see the pen? >> Yes, I do. >> All right, like I said, just your eyes, okay? I'll let you blink a couple times, all right? >> Blink? >> Yeah, you can blink a couple times. Let your eyes rest for a few. Then we'll get into the rest of the test. All right, ready? Again, you're just following it with just your eyes, okay? >> Mhm. >> All right, you can blink a couple times again. There's two more we're going to go through with this, all right? >> Yeah. >> Good? >> Yeah, I'm okay. >> All right, here you go. Ready? Same thing, just your eyes, all right? >> I can't see it cuz you're facing the flashlight. It's okay. >> Is that better? All right, last one. Ready? You're going to follow going up now, okay? >> Yeah. >> Don't move your head. >> The horizontal gaze nystagmus test scores six involuntary eye movement clues caused by CNS depressants. Four or more clues correlates with a BAC at or above 0.08% at 88% accuracy under NHTSA standards. New Jersey. However, imposes a restriction most jurisdictions do not. State versus Doriguzzi. New Jersey Appellate Division. 2000. HGN results are inadmissible to prove a specific BAC. The test shows impairment generally, nothing more. In refusal cases where no chemical test exists, Doriguzzi is not a footnote. It is the factor that defeats the prosecution. The walk and turn is a divided attention test. The subject must simultaneously process instructions and execute a physical sequence. Eight clues scored, two or more indicate likely impairment at 79% accuracy. Any deviation from NHTSA protocol during administration creates grounds to challenge admissibility at trial. The one leg stand scores four clues. Two or more indicate likely impairment at 83% accuracy. When all three NHTSA tests are administered together, combined predictive accuracy exceeds 90%. No individual test establishes impairment, the battery does. >> All right. Next test is going to be the walk and turn, okay? I'm going to explain it to you. We're going to put you in the starting position and we're going to go from there, okay? >> Okay. >> So, you're going to start heel to toe like this, hands at your side, touching your side like this, all right? You're going to take nine heel to toe steps. I'm going to do three, you're going to do nine, okay? So, it's one two nine, you're really going to do nine. You're going to turn around on a pivot. You're going to do nine back towards me, all right? Hands at your side. Do you understand? >> Am I walking towards you this way? >> You're walking You're going to walk towards me. You're going to do like I said, I did three. The starting position is right here. You're going to go one >> Okay. >> two to nine the pivot turn, nine back. >> Okay. >> All righty? >> Yeah. >> You start whenever you're ready. So, get in the starting position. On you. >> So, do I count? >> Yeah, you're counting to yourself. Now, like I said Do you remember the instructions? >> Can I take my shoes off? I'm better barefoot. So, we're starting at one, yeah? >> Yep. You're doing your >> two >> the number I told you back. >> Yeah. >> All right, I got one more test for you, okay? So, what you're going to do is again, your hands are going to be at your side. And when I tell you to do so, you're going to lift one foot approximately 6 in off the ground like so. And you're going to count out loud 1 1,000, 2 1,000, 3 1,000 until I tell you to stop. There's no number limit, okay? So again hands at your side, foot of your choice, doesn't matter, approximately 6 in off the ground. 1 1,000, 2 1,000, 3 1,000, okay? Do you understand? >> I understand. >> All right, I'll tell you when to go. All right, you can start whenever you're ready. Foot of your choice. >> Like here? >> Yep. >> 1 1,000 2 1,000 3 1,000 4 1,000 5 1,000 6 1,000 7 1,000 8 1,000 9 1,000 10 1,000 11 1,000 12 1,000 13 1,000, 14 1,000 15 1,000 16 1,000 17 1,000 18 1,000 19 1,000 Uh 20 1,000, 21 1,000 >> All right, you're good. You can put your foot down. All right, here, you can put your flip-flops back on. And then the last test, you can face that sign right there. And just put your hands behind your back for me. >> Why are you arresting me? >> You're under arrest for drinking while intoxicated or driving while intoxicated. >> You're arresting me? >> Yep. >> Why? >> Cuz you did not pass the tests. >> Probable cause to arrest for DWI requires facts sufficient to lead a reasonable officer to believe the driver was operating while impaired, not proof beyond a reasonable doubt. Three failed field tests preceded by documented erratic driving satisfy that threshold independent of chemical confirmation. New Jersey's approved breathalyzer is the Alcotest 7110. State versus Chun, New Jersey Supreme Court, 2008. Admissibility requires strict compliance with calibration and maintenance protocols. A non-compliant result is inadmissible regardless of the number. 0.138% falls in the enhanced tier under New Jersey statute 39. 4 50 covering BACs between 0.10 and 0.15%. First offense penalties include mandatory suspension of 7 to 12 months, intoxicated driver resource center enrollment, and ignition interlock installation. A concurrent reckless driving citation under 39. 4 96 was issued. The arresting officer receives an A minus. Every constitutional checkpoint was executed cleanly. Stop predicate under Terry versus Ohio. Exit order under Pennsylvania versus Mims. Three tests NHTSA battery in proper sequence. Probable cause based arrest. And warrantless breath test authorized by Birchfield versus North Dakota. Two factors prevent a full A. First, the arrest announcement on audio was unintelligible. A record gap defense counsel will exploit in any suppression hearing. Second, in a refusal scenario. Dora Gutti forecloses HGN as an arrest driver, a vulnerability. The Alcotest result here masked, but not permanently. The driver receives a B. Compliance with all three field sobriety tests and composed conduct throughout are genuine credits. However, operating at 0.138% is a per se violation of New Jersey statute 39 4 50, regardless of any belief about fitness to drive. The Fifth Amendment protects a driver's right to decline investigative questions during any traffic stop. A denial of consumption followed by 0.138% is a prior inconsistent statement the prosecution may introduce. In New Jersey refusal of field sobriety test is permitted, but documented failure across all three is stronger evidence. Three principles apply broadly. Probable cause in DWI is established at the roadside chemical confirmation corroborates it. It does not create it. In New Jersey HGN alone cannot carry a prosecution under Doria Gozy. The three test battery with chemical confirmation is what survives. And every statement made during a traffic stop is on the record. The right to silence exists from first contact. Let us know if there is a topic you would like us to cover in the comments below. Thank you for watching. And don't forget to check out our second channel Street Body Cam for more police interaction and courtroom content. >> How did I not pass the test? >> You come with me over here. You come up to this vehicle right here for me. >> Yes. >> Uh David Can you stay with her for a second? I think my keys are in here. Can you stay with her for a second? >> How did I not pass the test? >> He He will explain it to you when he >> I'll explain everything to you inside, okay? Just step back. Let me just make sure this is clear for you. All right, you're good. All right, you can take a seat right there. >> Well, my hands are tied now, so >> No, no, here. Leave them behind you. I'll help you up here, Dave. Hold this flashlight. Just real quick. Here. Ready? Get your leg there. >> Can I just leave me on hand? >> Yep, that's fine. There we go. Put those behind your back. Let me buckle you in. All right. You want to stay with her? Did you call Frank yet? >> Yep. Yep. >> Perfect. >> I'll stay with the car. >> Uh >> Yep. >> Do you have your phone or anything you need out of the car because the car's going to be towed? >> No. >> So, what what do you need out of the car? >> Well, I don't I this has never happened to me before. I don't know what do I need. My >> So, well so right Yep, wallet. I know, I know that. I know, that's why I'm asking you. Wallet and phone are in the car? >> Everything is in my car. >> All right, we're going to grab your wallet and your phone for you, all right, cuz the car's going to be towed. All right. Uh where are they? On the passenger seat, center console? >> I have a fanny pack. Everything should be in my bag and the keys are probably you asked me to turn it off, so I guess they're in my >> All right, so the phone and the wallet the phone and the wallet are in the fanny pack? >> My phone and wallet are in the fanny pack. My >> You want to just grab the fanny pack and then you stay with the keys. >> My car keys may be in the center console or on the passenger seat. >> Okay, thank you. >> All right, Dave. She said key should be center console or cup holder. Uh yeah, wallet and phone. Uh yeah, she said it should be in the fanny pack if you want to just grab it out. Let me show we have All right, you can step out. And we're going to go this way up here, okay? Right up those stairs to that door. You're welcome. We're going to go right past that door right there and make a right. Right here and then you're going to stop right here. That's a big crack for just sitting there. >> I broke my arm in a car accident 2 years ago. It gets really >> Oof. Sorry to hear that. >> I wasn't at fault. It was the other driver. >> That's good. All right, we're going to hook go left here. All right. And then I'm going to take one of your cuffs off and we're going to sit over here. All right? All right. I'm going to reach around you right there. >> You have to handcuff me to this pole? >> Yeah. >> Why? >> Because you're under arrest. I I know you're not being violent or anything. It's just policy. All right. >> Very far into me. >> It's very loose. So, if for some reason it hurts, I I mean there's not really much >> here now? >> Yeah. For right now, I'm going to explain a couple things to you. >> [music] [music] [music]