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1) Under NJ law, the horizontal gaze nysthagmus test (HGN) can be used to develop probable cause
. According to the NJ courts, the results of the HGN may be excluded from evidence where it is shown that the test was not performed according to standards accepted by NHTSA. A health condition affecting the eyes such as an astigmatism or lazy eye can cause the results to be inaccurate. The NJ courts have held that the HGN test is based on the observation of three different physical reactions that occur when a person is under the influence of alcohol: (1) the inability of a person to follow, visually, in a smooth way, an object that is moved laterally in front of the person's eyes; (2) the inability to retain focus and the likelihood of jerking of the eyeball when a person has moved his or her eye to the extreme range of peripheral vision; and (3) the reported observation that this “jerking” of the eyeball begins before the eye has moved 45 degrees from forward gaze if the individual's BAC [(Blood Alcohol Content)] is .10 [percent] or higher. See: State v. Doriguzzi, 334 N.J. Super. 530, 536 (App.Div. 2000), because you cannot make a blanket statement that it is not admissible in court, since the NJ courts have not said that, as you can see from the case law, they say it has to be demonstrated it was properly performed and thus, it is something that your son's attorney can challenge the case on.
2) Giving multiple breath tests is also grounds to challenge the arrest based on the continued testing and this is something els your attorney can raise.
3) If there are no test readings, it would be a highly difficult case for the prosecutor to win as there is really no proof he was legally intoxicated.
4) Your son needs to make sure his attorney files an administrative driver's license revocation appeal because of the alleged refusal to take the test, which is separate from the criminal
case. He must do both.
If your son pleas to anything in this case, he cannot pursue any charges or anything against the officer. Furthermore, bringing suit against officers is quite difficult for false arrest
, since officers are covered by what is called qualified immunity. If your son's attorney can prove the officer did not comply with the law, this would be an exception to the qualified immunity and in that case he could potentially sue the officer for false arrest, but he cannot take a plea to anything in order to do so, he would have to be found not guilty.
If your son is able to go to trial
and get found not guilty or is able to get the charges dismissed based on the grounds mentioned above, then it is possible that your son could indeed pursue the false arrest case against the officer.
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