From a criminal defense attorney’s point of view, the factual scenario surrounding the arrest of Bruce Springsteen for DWI is exactly the type of case that you want to defend. The legal limit of alcohol in your blood in the state of New Jersey is .08%. If you test over .08%, that is prima facie evidence that you are driving while impaired. However, Springsteen’s BAC was .02%, one-fourth of the legal limit. The other way to prove impairment in a DWI case is to show that the individual operating a vehicle violated various traffic ordinances such as running a stop sign or crossing over the lane markings on the road.
The Springsteen DWI arrest has neither of these elements. According to the reports that have been provided publicly, Bruce Springsteen was observed taking a shot of tequila with fans at a federal park. That act was against the law, and should result in a citation. However, the report goes on to indicate that Springsteen climbed onto his motorcycle and started it. The report does not state that he traveled anywhere or that the officer observed any level of impaired driving. In fact, as a defense attorney I would argue that a 71-year-old man lifting his leg and climbing onto a motorcycle to start it would indicate normal dexterity and the lack of impairment.
The officer must also show probable cause to request a breath test. While the officer observed Springsteen take a shot of tequila, other factors must show probable cause that a reasonable officer would think that his ability to operate a motor vehicle was impaired. This probable cause can be shown by having a subject perform three field sobriety tests that are approved by the National Highway Traffic Safety Administration (NHTSA). These tests are the Horizontal Gaze Nystagmus (HGN) test of the eyes, the Walk and Turn test and the One Leg Stand test.
In Springsteen‘s case, the officer stated that he observed four out of the six clues in the HGN test. The key for a defense attorney in the HGN test is to determine whether the test was administered properly. As with any of the standard field sobriety tests, the result of the test is only as good as the officer that performed the test. If it was not administered correctly, such as the object that the officer had the suspect watching was held too closely or too far away from the suspect, the test is not valid. Generally speaking, the way to determine whether it was administered properly is the use of body camera or dash camera footage during the arrest. However, it is unlikely that the park rangers wear body cameras. We know from the report that the park ranger was on foot patrol, so there will be no dash camera footage of the incident. Alternatively, a good defense attorney will inquire of the park ranger during testimony as to the proper way to conduct the test. Often times a defense attorney will find that a peace officer does not know how to conduct the HGN test and cannot repeat the proper instructions on the stand when asked to recite them.
The other test that was administered on Springsteen according to the report was the Walk and Turn test. Before I discuss Springsteen‘s results or the merits of how the Walk and Turn test was administered on him, it is important to point out that the NHTSA guidelines state that the test should not be given on subjects that are over 65 years old because the test becomes in accurate at that age. NHTSA also notes that their original studies only contained 1.5% of the subjects over 65 years old to determine whether the walk turn test is an accurate indication of impairment. In a nutshell, the Walk and Turn test should never have been administered to Springsteen. For arguments sake, let’s say that Springsteen was 61 instead of 71 years old. It would be important to have either body camera footage so that a defense attorney could see if the test was administered properly, or in the alternative have the park ranger recite the instructions on cross examination. The instructions for the Walk and Turn test are very specific and often conducted incorrectly by officers that do not frequently arrest subjects for driving while intoxicated. One of the most common mistakes that I have seen in my practice is that the instructions that were given to the subject are incomplete. I often see officers tell her subject to “walk heel to toe nine steps forward, pivot to turn and then walk back” without ever telling the subject how many steps to take after they turn around. You cannot hold a subject accountable for the wrong number of steps if you didn’t tell them that they needed to stop after the second set of nine steps that they we’re supposed to take after their pivot turn. The instruction phase of each test is crucial, and can be fatal to the officers DWI case if done incorrectly.
Notably missing from the report is the third standard field sobriety test, the One Leg Stand test. The park ranger does not indicate in his report why the One Leg Stand test was not given. If the officer were to say on cross-examination that he did not give it because of Springsteen‘s age, then he would certainly be admitting that the Walk and Turn test was of no value as well. It would be important for a defense attorney to inquire why the One Leg Stand test was not administered, and dismantle the park ranger’s case accordingly.
The fact that Springsteen was arrested by a foot patrol park ranger raises serious questions about the level of training and experience that the arresting officer possessed. In my practice, I have literally had hundreds of cases with a City of Joplin DWI specialist named Jared Swann. Officer Swann is an excellent example of someone with excellent training and a large volume of DWI arrests to his name. When reviewing Officer Swann’s reports, there is a minuscule chance that his instructions to the subject that he is testing are incorrect. While I personally watch the body camera and dash camera footage of each of his arrests, I can’t think of a time that the field sobriety test instructions were not given properly. To the contrary, it does not appear that the park ranger that arrested Springsteen has much traffic or DWI experience. His report contains very little detail on the standard field sobriety test, which makes the case ripe for being dismantled on cross examination.
There has been some confusion about the report stating that Springsteen refused the breath test. What he refused appears to be the Preliminary Breath Test (PBT), which is a small, uncertified machine that is used on the scene to obtain a preliminary BAC reading. Refusal to take the PBT is not an indication of guilt, nor can it be used in court or at an administrative hearing on your driver’s license status. Springsteen took the certified breath test according to most reports and blew a .02% BAC, only one-fourth of the legal limit in New Jersey.
If I could chose a DWI case to defend, this factual scenario of the Springsteen DWI arrest would be near the top of the list. Given the lack of driving observations, questions about the validity of the field sobriety testing and the BAC test result of .02%, one has to question whether the arrest was made simply because the subject was Bruce Springsteen. I can’t imagine this arrest being made on a regular basis.