Over the past several months I have discussed in detail the various field sobriety tests that police officers utilize during their investigations of DWI’s. Today is the final installment of the series with what is typically the final field sobriety test conducted roadside, the One-Leg Stand Test. Obviously, standing on one foot for up to 30 seconds is rarely easy for anyone. However, studies show that when the failure of this test is coupled with the Horizontal Gaze Nystagmus Test and the Walk and Turn Test, it can demonstrate with a high probability whether someone is too impaired to operate a motor vehicle safely.
On the One-Leg Stand Test (OLS), there is a possibility of four different potential indicators of impairment. Like the Walk and Turn Test, the OLS is considered a divided attention test. While the subject is standing on the foot of their choice, they are required to look at the other foot and count out loud until being told to stop. This then pairs a physical task, standing on one foot, with a mental task, counting. Although the combination of balancing, listening, and counting out loud does not seem very daunting to most, it can actual be quite difficult for someone who is impaired.
As with WAT, the OLS requires a surface that is dry, hard, level, and non-slippery. If the subject is wearing heals that are over 2 inches in height, the officer must give them an opportunity to remove their shoes. Studies have also suggested that individuals over 65 years of age, people with back, leg, or inner ear problems, and people who are 50 or more pounds overweight may have difficulty performing the test. If the test is conducted on any of these individuals, their attorney should be able to discredit the officer for even continuing with the test once these issues are discovered.
The instruction phase of any of the sobriety tests are of critical importance in ensuring any level of accuracy. On the OLS there are eight distinct instructions that must be given to the subject by the officer performing the test. If instructed or demonstrated improperly by the officer, the results can be drastically compromised. The following instructions must be given by the officer, and must be given from a safe distance:
1) Tell the suspect to stand straight, feet together and arms at their sides, and not to begin until instructed to do so, followed by “do you understand”;
2) Tell the suspect to raise one leg, either leg, approximately 6″ above and parallel with the ground (toe pointed out or down slightly), followed by a demonstration;
3) Tell the suspect to hold the elevated foot in this position and count in the following manner, one thousand and one, one thousand and two, one thousand and three, and so on until told to stop, followed by a demonstration;
4) Ask the suspect if he or she understands;
5) Tell the suspect that throughout the test, to remember to: a) watch the elevated foot; b) count like instructed; c) keep both arms at the sides; d) keep both legs straight; e) should you put your foot down, lift it back up and continue counting from where you left off;
6) Ask the suspect if he or she understands;
7) Ask the suspect if he or she feels like they can perform the test as explained;
8) Tell suspect to begin and check the time (Must be timed for 30 seconds)
If any of the above instruction are left off, the particular clue should not be counted by the officer or the Court, and it could serve to discredit the officer’s credibility. Although there are a total possibility of four potential indicators of impairment on this test, it takes two to fail. The following are potential indicators of impairment, or “clues”:
1) Sways while balancing (side to side or back and forth motion while the subject maintains the OLS position. Slight tremors do not qualify);
2) Uses arms for balance (subject moves arms 6 inches or more from the side of the body in order to keep balance);
3) Hopping (subject is able to keep one foot off the ground, but resorts to hopping in order to maintain balance);
4) Puts foot down (the subject is not able to maintain the one leg stand position, putting the foot down one or more times during the 30 second count).
If two of the above indicators are present, it will be determined that the subject has failed the test, indicating the possibility of impairment. Again, however, if any of the instructions are left out during the instruction phase by the officer, the validity of the entire test comes into question. This is another test in which it is valuable to have it captured on video and audio from the car of the officer. Whether it is or isn’t captured on the dashcam, it takes a skilled and experience criminal defense attorney to advocate for you at trial. To effectively cross-examine the officer, attorneys must have a well-rounded knowledge of how DWI’s are investigated and must have a thorough understanding of the field sobriety tests.
This concludes my 3 part series on Field Sobriety Testing. Once again, I hope the posts have been informative as I aim to put the public on a level playing field with police officers when requested to complete FST’s on the side of the road. Don’t hesitate to contact my law office should you ever find yourself in the position of needing a skilled criminal defense attorney.