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Steven A. Tomeo & Associates, LLC

I always tell my clients this story. First of all, I was representing this man. He was from Massachusetts and this must have been about 10 years ago and he weighed close to 400 pounds. The police officer gave him the standard field sobriety tests.

According to the police officer, he didn’t perform the horizontal gaze Nystagmus test to standard and he didn’t perform the walk-and-turn test to standard. When he did the one-leg stand test he performed that to standard. He didn’t miss anything. He lifted his one, just did everything 100%, according to the police officer.

When the prosecutor read the arrest report, he said, “How can a man, that weighs almost 400 pounds, fail the walk-and-turn test and the horizontal gaze Nystagmus test but yet passed the one-leg stand test?” He said, “It doesn’t seem possible that if he can do the one-leg stand test, as this police officer says he did, how he could have done so poorly on the other tests?”

He said he couldn’t believe the arrest report, thought it was a dubious arrest report so he offered the client a reduction in the charge which he accepted.

Any Deviation From the Instructions Set Forth by the National Highway Administration Should Be Viewed as a Violation and Invalidate the Test Results

I think a lot of these are very subjective as it depends upon the feelings of the prosecutor. I think most times these tests are interpreted differently by different people, i.e., the prosecutor, the defense attorney, everybody involved in the case. I do not think anybody has a standardized version of these tests like they should.

By that I mean when law enforcement, if they are not reading that card, then they are not giving the instructions the way the National Highway Traffic Safety Administration says they should be given. The one-leg stand test is similar and what the police officer is supposed to say according to National Highway Traffic Safety Administration, NHTSA, is when he gives his instructions he’s supposed to say, “Now, I want you to stand with your heels together and your arms at your side.” Then he’s supposed to demonstrate that. Then he says, “Do not begin the test until I tell you to.”

The third he asks is, “Do you understand?” Presumably, if you say yes then he goes to the next question or the next instruction. When I tell you to, I want you to raise one leg, either leg, approximately six inches off the ground, foot pointed out. Keep both legs straight and keep your eyes on the elevated foot. By holding that position, count out loud, 1001, 1002, 1003 and so forth until told to stop and he’s supposed to demonstrate the raised leg and the count.

This Test Is Comprised of 3 Components, the Instructional Stage, a Balance and a Counting Stage

The sixth is do you understand the instructions? I you say yes then he says, “You may begin the test.” According to the history of this test, the one-leg stand test has been validated through the National Highway Traffic and Safety Administration’s research program. This test also has an instructional component and a balance and counting stage. In the instruction stage you stand with your feet together, your arms at your side and you listen to the instructions.

In the balance and counting stage you must raise one leg, either leg, approximately six inches off the ground, which means that you can either raise left leg or your right leg or stand on either one. Your toes are pointed out and keeping both legs straight. While looking at the elevated foot you’re supposed to count out loud in the following manner: 1001, 1002, and 1003; until told to stop.

The One-leg Stand Test Is Known as a Divided Attention Test

These tests are called divided attention tests. These tests and the one-leg stand test divide your attention between balancing standing on one foot and small muscle control, counting out loud. In other words, you know the old saying when people joke around when they say a person is uncoordinated, that person can’t walk or chew a gum at the same time?

The Theory Is That Alcohol or Drug Impairment Limits an Individual’s Ability to Perform a Divided Attention Task

When these tests are administered, they divide your attention among many things that you’re supposed to do. The theory is that if you’re impaired by alcohol or drugs, they do divide your attention and you can’t perform all of these actions basically at the same time. It’s similar to the police officer always talking to you when he’s asking you to do certain things while you’re still on the car.

The Police Begin Asking Drivers to Perform Divided Attention Tasks While They Are Inside Their Vehicles

In other words, he’s there and he says, “I would like your license, registration and insurance card,” and then while you’re looking for it he’s asking you a bunch of questions. If you stop looking for those three items he wanted to answer his question, he’ll make a notation of that. That’s supposed to mean that you couldn’t do all of those functions at the same time.

The one-leg stand test is a time test. In other words, the way it was developed is for it to be a 30-second period by the officer. You’re supposed to be able to stand on one leg with your arms at your side, your other leg out stretched with our toe up and you’re supposed to be able to count 1001, 1002, 1003 up to 1030.

How Is the Officer Checking to See If You Have Your Leg up for 30 Seconds? There Are Variables That Can Occur During the Administration of the One-Leg Test

Now, one of the problems usually is when you are counting in one second intervals. Is the police officer looking at his watch to make sure it’s 30 seconds? In other words, if you’re counting 1001, 1002, you could be doing that for more than 30 seconds.

On the same test, it’s supposed to be interpreted in a standardized manner. The officer is supposed to observe your performance and look for four specific clues. One, is he swaying while he’s balancing? Another, is he using his arms to balance himself? Another, is he hopping? The fourth one is did he put his foot down?

The inability to complete the one-leg stand test occurs when you put your foot down three or more times during the 30-second period. It means you cannot do the test. Rarely do I see this test given in a standardized manner.

The Police Should Be Demonstrating the Proper Performance of the Test While Relaying the Instructions

Every police officer I see gives the instructions a little bit differently. Some give the instructions but they do not give a demonstration like they should. In other words, the NHTSA wants the officers to provide a demonstration so that the words mirror your action. The person that you’re giving the instructions should be able to see what he’s actually supposed to do.

How Much Weight do the Tests Have? The Driver’s Performance of the Field Sobriety Tests Are Almost Always Assessed by the Prosecutor

There are three tests and they generally always are entered as evidence during a DUI case. Some prosecutors think that they are very important. Other prosecutors feel that other things are more important, but no matter what person you get as a prosecutor, they all consider them in assessing whether you’re a person who’s operating under the influence.

STEVEN TOMEO, ESQ.

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