The Appellate Division recently held in State v. Bernokeits, A-3150-10, that a field sobriety test is similar to an investigatory stop and only requires a reasonable, articulable suspicion that the defendant is under the influence of alcohol. The defendant in Bernokeits argued that the standard should be “probable cause”, a higher standard of proof, and the Appellate Division rejected that argument. The court held that the administration of field sobriety tests “is more analogous to a Terry stop than to a formal arrest, and therefore may be justified by a police officer’s reasonable suspicion based on particularized, articulable facts suggesting a driver’s intoxication.”

The famous case of Terry v. Ohio, 392 U.S. 1 (1968), was decided by the United States Supreme Court which allows officers to “Terry stop and frisk” an individual if there is reasonable suspicion that criminal activity is afoot. Basically, an officer can stop and frisk a defendant for officer’s safety but cannot search the defendant unless, based on the frisk, a weapon or contraband is clearly detected.

In this case, the Appellate Division held that field sobriety testing is akin to the Terry stop and frisk and therefore the officer only needs reasonable suspicion that the driver is under the influence of alcohol to require that field sobriety tests be performed. Field sobriety tests typically include the “walk and turn test”, the “one leg stand test”, and the horizontal gaze nystagmus (HGN) test.