Breath And Field Sobriety Tests

When you were pulled over for suspected drunk driving, you may have thought that you were required to submit to a breath test and field sobriety tests. The officer may have made you believe that you could not or should not refuse the tests. Or, you may have refused to take any tests and now wonder about your chances for fighting your DWI charges.

If you failed the breath test, or if you refused to submit to the test, and were charged with DWI, contact D’Alessandro & D’Alessandro, LLC, for help. For more than 30 years, our drunk driving defense lawyers have helped minimize the charges and penalties of people charged with DWI in northern and Central New Jersey, including Basking Ridge, Bernards Township and Bedminster.

The breath test and field sobriety tests are given by the police: how can I challenge this official evidence?

Contrary to popular belief, just because a breath test uses an official machine or just because the field sobriety test is conducted by a police officer or highway patrol officer, these tests are not 100 percent accurate. Even if you failed the breath test by blowing over .08 percent for your blood alcohol content (BAC), or failed the field sobriety test, our experienced attorneys can still challenge the evidence. When investigating the Breathalyzer, Alcotest, or other breath or sobriety tests used to support your drunk driving charge, we can:

  • Review the testing procedures
  • Evaluate the accuracy of the testing machines, often called the Alcotest or Breathalyzer
  • Examine the Breathalyzer maintenance report
  • Check the calibration of the equipment used to measure BAC
  • Review the officer’s history for other inaccurate testing procedures
  • Review the officer’s qualifications for conducting tests
  • Examine the place where you took field sobriety tests for uneven ground or other conditions that might have hindered your performance
  • Review your medical history for medications or conditions that may have affected test results

Our thorough investigation may uncover flaws in the testing procedure or the breath test machine itself. Any inconsistency or error can provide valuable evidence and a reason for the breath test results to be suppressed. We also look at other details that may affect the accuracy and validity of breath and field sobriety tests such as whether you wore high heels or have acid reflux.

Considering the harsh penalties you face, challenging the breath and field sobriety tests is part of a strong defense.

We understand how to challenge the results and how the operator conducted the tests:

  • The operator must have observed you for 20 minutes before having you perform the breath test.
  • The operator must have used a new disposable mouthpiece for your test and removed all electronics from the area.
  • Clear instructions must have been given to tell you how to take the test correctly.
  • You must have provided a minimum amount of air for the test, which may be difficult for some (such as older women).
  • The breath machine must have been recalibrated and inspected no more than six months before your test.
  • The operator must show that he or she is qualified and certified to administer the tests.

In order for an Alcotest or other breath test results to stand against you, the state is required to show that the machine was in working order and was properly inspected, show that the officer was properly certified, and show that the test was administered according to official procedure.

If you fail a breath test and are convicted of driving while intoxicated (DWI) or driving under the influence (DUI), and depending on your breath test results, you face the following penalties:

For DWI with a BAC of .10 percent or greater
Loss of license Fines and fees Prison time Community service
7 months to one year $300-$500 fine
$230 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,000/year (for three years) surcharge
$75 to Neighborhood Services Fund
Up to 30 days 12-48 hours IDRC*
BAC .15 percent or greater: ignition interlock device during license suspension and six months to one year following restoration
For DWI with a BAC greater than .08 percent but less than .10 percent
Loss of license Fines and fees Prison time Community service
3 months $250-$400 fine
$230 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,000/year (for three years) surcharge
$75 to Neighborhood Services Fund
Up to 30 days 12-48 hours IDRC*


  • *IDRC — Intoxicated Driver Resource Center
  • *AERF — Alcohol Education and Rehabilitation Fund
  • Underage drinking may cause a six-month delay in getting a license
  • Alcohol and drug-related offenses require completion of an alcohol screening and evaluation program

For more details about the penalties for DWI associated with breath tests, see the New Jersey Motor Vehicle Commission site.

Contact Us

To talk with a lawyer who is experienced and successful in challenging breath test results and field sobriety test evaluations by officers, contact D’Alessandro & D’Alessandro, LLC. We are prepared to fight for you.