What confounded many observers, though, was the detail that Springsteen reportedly blew a .02 on the breathalyzer test, which is one-quarter of his home state’s .08 legal limit for driving while intoxicated. To clarify the seeming discrepancy, Billboard reached out to a veteran New Jersey attorney who has defended nearly 1,000 DUI/DWI cases in the Garden State.
According to James Seplowitz, partner at Foy & Seplowitz — who has no first-hand knowledge of the Springsteen case but was speaking in general terms about DWI case law in New Jersey — one thing that made the incident unique is that unlike other states, unless there was an injury or fatality, a DWI is typically a motor vehicle offense, not a crime in Jersey. That quirk results in the driver being taken into custody, but no official arrest record because no fingerprints are taken.
From the reports that have emerged, the officer allegedly observed Springsteen consuming what appeared to be alcohol in the park and then starting up his motorcycle, which Seplowitz says could have given them suspicion that he was preparing to operate a vehicle while intoxicated. That alone, he would argue, is not probable cause for arrest, but arguably gave the officer a reason to stop the singer even if he hadn’t yet committed a visible motor vehicle infraction.
“It might look like a shot of tequila, but who knows what it was? It might have been a shot of Gatorade,” Seplowitz says. The alleged glassy eyes and smell of alcohol on Springsteen’s breath are typical of DWI cases that the attorney defends, with Seplowitz noting that it’s possible the singer was tired from a long day or could have been suffering from allergies or any number of other factors that would cause bloodshot or watery eyes. That observation alone is not enough to arrest someone, but combined with other factors cited in the court report, it might rise to the lowest level of proof needed — “reasonable suspicion” — at which point the officer is entitled to ask for a field sobriety or coordination test.
The battery of three standardized tests from the National Highway Traffic Safety Administration, if administered properly, are meant to show that a person is under the influence. The tests are: horizontal gaze nystagmus (HGN), which tracks a subject’s eye movement; the walk-and-turn test, in which they are instructed to take nine heel-to-toe steps forward and backwards in an attempt to gauge their ability to retain balance; and the one-leg stand test, in which the subject must hold one foot 6 inches off the ground and count by one-thousands until told to put their foot down.
In Seplowitz’s experience, most people, impaired or not, have trouble with the second and third tests, and for people who are 65 or older — Springsteen is 71 — NHTSA recommends that those tests are unreliable because at that age balance might not be an accurate way to gauge whether you’ve been drinking. “Why are you making a guy who’s 71 stand on one leg?” he asks, noting that if Springsteen was not able to count off the appropriate amount of steps requested that might have something to do with his “divided attention skills” and be an indication to the officer that he was impaired.
Seplowitz notes that in “well over 50%” of cases he’s seen when he watches the video of the eye-movement test, it is clear the officer did not administer it properly; at press time it was unclear if the officer recorded the arrest or the tests or if any footage of them exists, and a spokesperson for the National Park Service had not returned requests for comment. If there is video, he says, that would be crucial to determining if the instructions and tests were administered properly and how Springsteen performed.
As for the reports that the singer blew a .02, Seplowitz says in his experience, that is consistent with having one shot of alcohol, which would mean Springsteen was not legally under the influence. There are two ways to prove guilt in these cases: One is “per se,” which shows through a breath test that the person had a blood-alcohol level of .08 or above, or by “observations prompts,” which includes the officer’s observation and subject’s performance on the field sobriety tests. The officer, however, must prove it beyond a reasonable doubt, which Seplowitz says is a much higher standard than the probable cause or reasonable suspicion standards to make the arrest. “If he blew an .02, quite frankly he shouldn’t have even been charged,” says Seplowitz.
The one wrinkle he notes, though, is that the officer has a lot of discretion, and even if the blood-alcohol level is as low as .02, they might have observed that it affected the person so much that they failed the tests and were driving erratically enough to warrant an arrest. Most prosecutors, though, would not want to pursue a case where the reading was so far below the legal threshold, he says. The fact that the officer allegedly observed the drinking — which is rare in Seplowitz’s experience — but did not see Springsteen driving erratically might give the defense a very good argument that it was an unlawful stop without enough reasonable suspicion and that any evidence produced afterwards is so-called “fruit of the poisonous tree,” a potential violation of Springsteen’s Fourth Amendment rights.
According to the report, it does not appear that Springsteen actually began driving his motorcycle after allegedly taking the shots, though Seplowitz notes that in New Jersey, operation of a vehicle is very broadly defined. “If you are in control of the motor vehicle and you’re intending to drive it, that’s considered operation,” he says.
The one question anyone who has faced a DWI always asks is “am I in trouble if I refuse an in-field breathalyzer test?” In this case, according to the report, Springsteen did just that, and Seplowitz explains that in New Jersey a portable breath tests on the scene is not admissible in court, but rather used to establish probable cause and cannot result in its own separate charge. However, if after your arrest you refuse the breath test at the police station, you can get hit with a charge of “refusal.”
Springsteen appears to have taken the test at the station, which Seplowitz says is administered twice, with the samples compared to make sure they’re in the acceptable range and then the lower figure standing as the official result. In the wake of the report, a Super Bowl Jeep ad featuring Springsteen’s voice-over was removed from YouTube. The singer is reportedly due in count in the next few weeks in connection with the stop.