What confused many observers, however, was the detail that Springsteen allegedly blew a 0.02 on the breathalyzer test, which is a quarter of his home state’s legal limit of 0.08 for drunk driving. To clarify the apparent discrepancy, Advertising panel contacted a veteran New Jersey attorney who has pleaded nearly 1,000 cases of DUI / DWI in Garden State.
According to James Seplowitz, a partner at Foy & Seplowitz – who has no firsthand knowledge of the Springsteen case, but spoke in general terms about DWI jurisprudence in New Jersey – one thing that made the incident unique is that unlike other states , unless there has been an injury or death, a DWI is typically a motor vehicle offense, not a crime in Jersey. This peculiarity causes the driver to be taken into custody, but there is no official arrest record because no fingerprints were collected.
From the reports that emerged, the officer allegedly observed Springsteen consuming what appeared to be alcohol in the park and then starting his motorcycle, which Seplowitz says could have given them the suspicion that he was preparing to operate a drunk vehicle. That alone, he would argue, is not the probable cause for the arrest, but it certainly gave the policeman a reason to stop the singer, even if he had not yet committed a visible motor vehicle violation.
“It might look like a shot of tequila, but who knows what it was? It might have been a shot of Gatorade,” says Seplowitz. The alleged glassy eyes and the smell of alcohol on Springsteen’s breath are typical of the DWI cases that the lawyer advocates, with Seplowitz noting that it is possible that the singer was tired of a long day or could be suffering from allergies or any other factor that could cause red or watery eyes. This observation alone is not enough to arrest someone, but combined with other factors cited in the court’s report, it can reach the lowest level of necessary evidence – “reasonable suspicion” – at which point the officer has the right to ask for a field sobriety or coordination test.
The battery of three standardized tests by the National Road Traffic Safety Administration, if administered correctly, aims to show that a person is under influence. The tests are: horizontal eye nystagmus (HGN), which tracks the subject’s eye movement; the walk and turn test, in which they are instructed to take nine steps from the heel to the toes back and forth in an attempt to assess their ability to maintain balance; and the leg support test, in which the subject must keep a foot 15 centimeters above the ground and count by the thousands until instructed to place the foot on the floor.
In Seplowitz’s experience, most people, impaired or not, have problems with the second and third tests, and for people aged 65 and over – Springsteen is 71 – the NHTSA recommends that these tests are unreliable because in that age balance may not be an accurate way of assessing whether you drank. “Why are you making a 71-year-old guy stand on one leg?” he asks, noting that if Springsteen was unable to count the appropriate amount of steps requested, it may have something to do with his “split attention skills” and be an indication to the officer that he was impaired.
Seplowitz notes that in “well over 50%” of the cases he saw when watching the eye movement test video, it is clear that the policeman did not administer it correctly; so far it was unclear whether the policeman recorded the arrest or tests or whether there was any footage of them, and a spokesman for the National Park Service did not return requests for comment. If there is a video, he says, it would be crucial to determine whether the instructions and tests were administered correctly and how Springsteen fared.
As for reports that the singer blew a 0.02, Seplowitz says in his experience, this is consistent with taking a dose of alcohol, which would mean that Springsteen was not legally under the influence. There are two ways to prove guilt in these cases: one is “per se”, which shows by means of a breathalyzer test that the person had a blood alcohol level of 0.08 or higher, or by “notice of observation” , which include the official observation and subject performance in the field sobriety tests. The policeman, however, must prove this beyond any reasonable doubt, which Seplowitz says is a much higher standard than the standards of probable cause or reasonable suspicion for making the arrest. “If he blew a 0.02, frankly, he shouldn’t even have been accused,” says Seplowitz.
The only thing he notices, however, is that the policeman has a lot of discretion and, even if the blood alcohol level is as low as 0.02, they may have noticed that it affected the person who failed the tests so much and were driving irregularly enough to warrant an arrest. Most prosecutors, however, would not like to pursue a case where the reading was so far below the legal limit, he says. The fact that the policeman allegedly observed the drink – which is rare in Seplowitz’s experience – but did not see Springsteen driving erratically can give the defense a very good argument that it was an illegal stop without reasonable enough suspicion and that any evidence produced later it is the so-called “poison tree fruit”, a potential violation of Springsteen’s Fourth Amendment rights.
According to the report, Springsteen does not appear to have actually started driving his motorcycle after he allegedly took the shots, although Seplowitz notes that in New Jersey, the operation of a vehicle is defined very broadly. “If you are in control of the motor vehicle and intend to drive it, this is considered an operation,” he says.
The only question anyone who has ever faced a DWI ever asks is “Am I in trouble if I refuse a breathalyzer test in the field?” In that case, according to the report, Springsteen did just that, and Seplowitz explains that in New Jersey an on-site portable breathalyzer test is not admissible in court, but used to establish the probable cause and cannot result in your own prosecution. separate. However, if, after your arrest, you refuse to take a breathalyzer test at the police station, you may be attacked with the “refusal” charge.
Springsteen appears to have done the test at the station, which Seplowitz says is administered twice, with the samples compared to make sure they are in the acceptable range, and then the lowest number remains as the official result. Following the report, a Super Bowl Jeep ad featuring Springsteen’s voice was removed from YouTube. The singer is expected to go to court in the coming weeks in connection with the parade.
A Springsteen representative did not respond to Advertising panelrequest for comment so far.