As I expressed in a previous blog entry, I have serious issues with the validity of field sobriety tests. Many issues! Let's consider the One-Leg Stand (OLS) Test.
Here's what the National Highway Traffic and Safety Administration (NHTSA) says about this test.
The Walk-and-Turn test and One-Leg Stand test are “divided attention” tests that are easily performed by most unimpaired people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.
How the One-Leg Stand Test Is Given and Scored
For the One-Leg Stand test, the officer instructs the suspect to stand with one foot approximately six inches off the ground and count aloud by thousands (ie: “Count rapidly from 1,001 to 1,030”) until told to put the foot down. The officer is trained to have the subject continue to stand in this position for 30 seconds, while looking for indicators of impairment, also termed “clues” or “grades”:
- Swaying while balancing – Sways side-to-side or back-and-forth.
- Using arms to balance – Moves his/her arms six or more inches from the side of his body in order to maintain balance.
- Hopping to maintain balance – Hops on the anchor foot in order to maintain balance.
- Puts the elevated foot down – Not able to maintain the one-leg stand position, putting his/her foot down one or more times during the 30-second count.
- Cannot do test. Score this item if the suspect puts his foot down three or more times during the 30-second count or otherwise demonstrates that he/she cannot do the test. If so, the suspect is given five points – the maximum for this test.
NHTSA research indicates that 83 percent of individuals who exhibit or “score” two or more clues or indicators in the performance of this test will have a BAC of 0.08 of greater (Stuster and Burns, 1998).
Are they testing your ability to follow instructions, your coordination, or sobriety?
So clearly, even as explained by the National Highway Traffic and Safety Administration, the One-Leg Stand Test is designed to test if the subject can follow multi-task instructions. Not everyone is good at that in a stressful and uncomfortable situation. Plus, some people are just poorly coordinated, even without any alcohol in their system.
John from Exeter gets pulled over
A client of mine is a 42-year old professional man from Exeter. I'll just call him “John” for the purposes of this explanation. One evening, John was on his way home from meeting some of his friends in Portsmouth. He was pulled over because his SUV crossed over the white fog line. He had had a drink with his friends earlier in the evening, so he was nervous and about being pulled over by the officer. He was anxious about the consequences of having a DUI charge against him.
John was approached by a member of the New Hampshire state police who asked him why his SUV crossed over the white fog line. John admitted that he may not have been paying as close attention to his driving as usual because he had been talking on his cell phone. The officer thought he detected the odor of alcohol his breath so he asked John to step out of the vehicle.
The officer put John through the battery of three standardized field sobriety tests.
- Horizontal Gaze Nystagmus (HGN)
- Walk-and-Turn (WAT)
- One-Leg Stand (OLS)
The Instructions To John Were Misleading
On the night in question with John on the Rhode Island highway, the officer gave a specific instruction: “If you put your elevated foot down, pick it back up and continue counting where you left off”. John did put his foot down during the test, then lifted it back up as instructed and continued counting. He failed the test.
However, the training that the officer is given at the academy is to only give that specific instruction if the defendant puts his/her foot down. It is not to be given in the original instructions. The reason for this is because, by giving that instruction, the officer creates the false impression that it is OK to put your foot down.
The reality is that it is NOT OK to put your foot down, as you can see from the grading instructions above. The fact is, if you put your foot down, it is counted as a grade or clue that the police officer will count towards judging you to be impaired by alcohol. The police officer created the impression that it was acceptable and therefore induced the defendant, John, to present a clue which ordinarily would not have been used against him.
I Challenge The Test Results
As a DUI defense lawyer, in almost every case I challenge the results of the One-Leg Stand test and other field sobriety tests. What if a subject like John is just not well coordinated, or is caught off-guard by the anxiety and conditions of standing on one leg on a dark highway with cars whizzing by and a state patrol officer examining him. Is it not a natural reaction to put your arms out for balance? Your performance in this test is just too dependent on your unique physical abilities, sense of balance and ability to perform under stress.
Many Times, Evidence is “Excluded” or Not Given Full Weight
In John's particular case, my challenges proved successful in having the judge rule to exclude the evidence of the one-leg stand test based on the misleading instruction given by the state police officer. The judge agreed that John's performance on this test was not a real indicator of his sobriety. The evidence of the other field sobriety tests was excluded as well. John's DUI charge was dismissed.
Many times, by pointing out specific facts about the field sobriety tests in relation to a case, I'm able to get the court to either exclude the evidence, as with John's case, or to give less weight to the test results than they would ordinarily be given. These challenges help the court to determine that the state “did not meet the evidentiary burden” and found my client “Not Guilty”.