Of the three standard field sobriety tests, the One Leg Stand test is perhaps the easiest one to challenge. At best, it is only about 65 percent accurate in determining alcohol intoxication. In most cases, such a low percentage can hardly be considered proof beyond a reasonable doubt.
One reason this test is so inaccurate is there are so many variables. Persons with any substantial mobility impairment usually cannot balance on one foot for more than a few seconds without swaying, using their arms for balance, or falling over altogether. Many overweight people fall into this category as well.
Elements of the Test
Like the walk-and-turn, the OLS is a divided attention test. The test administrator evaluates both the defendant’s concentration ability and physical dexterity. A substantial loss of either is sufficient to prove intoxication in Texas. Such a finding could also serve as probable cause to request a chemical sample.
The mental portion usually involves counting out loud while the defendant elevates one leg. The physical portion is the ability to keep the leg up while standing perfectly still. So, officers look for several intoxication clues:
· Sway: The test is a bit subjective here. Many officers testify that the defendant “failed” the test if there is even one moment of wavering. But many jurors want to see more before they are convinced.
· Hopping or Placing Foot Down: These two are fairly obvious.
· Raised Arms: As far as the officer is concerned, any use of hands or arms for balance is a clue. But as far as the accrediting agency (National Highway Traffic Safety Administration) is concerned, the defendant must raise his/her arms at least six inches.
Some officers try to use intoxication clues like holding the foot at the wrong angle. Such “clues” are not officially recognized and do not indicate intoxication.
Challenging the OLS Test
Officers are supposed to screen defendants for conditions like mobility impairments, vertigo, dizziness, and so forth. But usually, officers just ask defendants if they understand the instructions and can perform the test. That self-assessment usually will not suffice.
When the test begins, the conditions are usually very unfavorable. Roadside tests usually take place at night in dark areas. As cars whiz past, it’s also difficult for defendants to hear all the instructions in this very detailed test.
Finally, many officers tire defendants out with unapproved DWI tests, like reciting the ABCs or the finger-to-nose touch, before they reach the approved field sobriety tests. Once jurors understand what the officer tried to do, they usually sympathize more with the defendant.
The one-leg stand is a very poor indicator when it comes to alcohol intoxication. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. Mr. Herreth is a former prosecutor who knows the law.
