The one leg stand (OLS) on its face is a fairly easy to describe field sobriety tests (fsts). The subject stands on either leg of his choice and extends the other leg approximately 6 inches off of the ground, the subject then counts out loud by thousands, i.e. one thousand and one, one thousand and two, etc., while looking at the extended foot until told to stop by the officer. There are four clues that officers are looking for on this test. The officer is looking for noticeable sway, putting the extended foot down to the ground, hopping on the foot that the subject is standing on, and raising his arms more than 6 inches for balance.
Again, like all field sobriety tests (fsts), this test is completely voluntary, and I do not recommend that you do under any circumstance. The results are often subjective. The tests are often improperly instructed and the results are often improperly interpreted. The best way to handle this test is simply politely refuse and inform the police officer that, "You have been instructed by an attorney that you are not required to do this test, and you are choosing not to complete it."
As with the other field sobriety tests, I will lay out how the test is supposed to be instructed and demonstrated per the National Highway Traffic Safety Administration.
One Leg Stand (OLS)
1. Test Conditions
A. The tester should remain as motionless as possible during the test so not to interfere with the subject's performance.
B. The test should be conducted on reasonably dry, hard, level, non-slippery surface.
C. Subjects over 65 years of age, or 50 pounds or more overweight or with back, leg or middle ear problems will have difficulty performing this test.
D. Subjects wearing shoes with heels more than 2 inches high should be given the opportunity to remove their shoes prior to testing.
A couple of things to keep in mind. Though not specifically mentioned in the Student Manual on the performance of field sobriety tests, environmental factors can affect a subject's performance on this test. Things like wind, dust, weather, and other environmental factors can affect performance.
2. Administrative Procedures
A. Instruction Phase - Initial Positioning and Verbal Instructions
1. While demonstrating, tell the subject, "[P]lease stand with your feet together and your arms down at the sides, like this.
2. Do not start the test until I tell you to do so.
3. Do you understand the instructions so far? Make sure the subject indicates understanding by affirmatively stating, "yes."
4. While demonstrating state, "When I tell you to start, raise one leg, either leg, approximately six inches off the ground, foot pointed out."
5. You must keep both legs straight, arms at your side.
6. While demonstrating state, " While holding that position, count out loud in the following manner, 'one thousand and one, one thousand and two, one thousand and three, until told to stop."
7. Keep your arms at your sides at all times and keep watching the raised foot.
8. Go ahead and perform the test.
The test should always last 30 seconds regardless of what the subject counts to. The tester should keep time on a time piece and stop the test at 30 seconds.
B. Performance/Grading the OLS Test
1. Subject sways while balancing - side-to-side or back-and-forth motion while in the one leg stand position.
2. Subject uses arms to balance - the arms must be raised more than 6 inches from the subject's side to count as a clue.
3. Subject hopping (to maintain balance) - resorts to hopping in order to maintain balance.
4. Subject puts foot down - not able to maintain one-leg position, but foot down one or more times during the 30 second count.
If the subject puts the foot down, instruct the subject to pick his foot back and to continue counting from the point at which the foot may have touched the ground.
Each clue may appear several times, but still only counts as one clue.
If the subject cannot do the test, or puts his foot down more than 3 times, record as if all four clues were observed.
Total of 4 clues. The presence of 2 or more clues is significant. Some studies try to erroneously say that there is an 88% likelihood the subject is over a 0.08% if he or she exhibits two or more clues.
It should be noted that anytime we are discussing any field sobriety test or divided attention exercise, cognitive difficulties and Attention Deficit Disorder (ADD) or ADHD or other medical issues can be factor. An attorney well versed in DWI defense will keep an eye out for these factors.
In the next blog, we will discuss breath testing on the Intoxilyzer 5000.