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One Leg Stand Test for DUI
Note: This is
prosecution oriented information written with a view towards law enforcement
and justification of the One Leg Stand Test as a filed sobriety test. Please be aware that
the "One Leg Stand" test as a
field sobriety test is fraught with problems, inaccuracies, false and voodoo
science, and just plain misunderstanding in its administration and application
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In order to perform this test, it
must be performed on a hard, dry, level, non-slippery surface. Conditions must
be such that the suspect would be in no danger if he or she were to fall.
Certain wind/weather conditions obviously may interfere with and affect the
validity of this test. This test should not be given to persons who are more
than sixty-five years of age, more than fifty pounds overweight, or with
physical impairments that interfere with balance. Individuals wearing heels more
than two inches high should be given the opportunity to remove their shoes as
this may diminish the reliability of the results. The officer is trained not to
give this test if there is not adequate lighting to perform it. In total
darkness, even the average, sober person may have difficulty with this test, due
to their visual frame of reference being taken away.
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It is imperative that the officer
observe the DWI suspect from at least three feet away, and remain as motionless
as possible while the suspect is performing this test. If this is not done, the
test may be interfered with and ultimately affect the results and validity.
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In the administration of this DWI
test, there is also two separate stages involved. The first stage is also called
the Instruction Stage. The test is initiated by giving verbal instructions,
followed by and accompanied by demonstrations of those instructions. The officer
is trained to advise the suspect to stand with their heels together and arms
down at their sides. The officer must demonstrate this. The officer must also
inform the suspect not to start the test until told to do so, and must receive
an indication from the suspect that they understand the instructions so far and
to document this acknowledgement. There are no scoring factors involved until
the suspect is into the next stage which is called the Balance and Counting
Stage, unless the suspect can not perform the test at all. This would give the
suspect a maximum score of four points and would necessitate explanation on the
part of the officer.
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In the Balance and Counting
Stage, the officer is required to explain the test requirements further by
instructing the suspect to stand on one leg, holding the other foot in front,
while the officer demonstrates. The suspect should be allowed to stand on either
leg that they wish. The suspect is instructed to keep the foot raised about six
inches off the ground. The officer demonstrates this and should advise the
suspect if it isn't to the officer's satisfaction. The suspect is further
instructed that while they are standing, they will count out loud for 30
seconds, and the officer will demonstrate the count as "one-one thousandth,
"two-one thousandth, etc., all the way to thirty-one thousandth. The suspect is
told to look down at their foot while counting and throughout the entire test,
to keep their arms at the sides at all times. They are told to refrain from
hopping or swaying while standing. The suspect must again acknowledge that they
understand the instruction to retain validity of the test. The test is then
begun.
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A suspect may be scored a point
for the following reasons. If the suspect sways while balancing. The officer is
trained not to be too critical in this scoring as the suspect is a living,
breathing person, and some sway will be noticed as a result of this. The swaying
that can be scored is a marked sway, such as a back-and-forth motion while the
suspect maintains the one-leg-stand position.
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Another scoring factor is when
the suspect uses the arms for balance in respect to having their arms six or
more inches from the side of the body.
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Again it must be taken into
account, the distance from the body that the suspect might normally start with,
such as in the case of bodybuilders. If the suspect puts their foot down,
regardless of how many times, they are only given one point on this scoring
factor. The suspect should be allowed to continue from the point of difficulty
as this test may lose sensitivity if repeated several times. The suspect has
been instructed to keep watching their raised foot and to count out loud, but if
they do not follow either of these instructions, they are not scored any points,
as it is not a part of any scoring factor.
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If the suspect counts too slow it
is imperative that the officer stop the test after thirty seconds have elapsed
as this may affect the scoring and validity of the test. The officer is trained
to time thirty seconds of total test time. If the suspect counts too fast the
officer is instructed to slow them down.
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Finally, the last scoring factor
in this test is when a suspect hops on one foot. This is scored only if they
resort to hopping on the anchor foot in order to maintain balance. It should not
be scored if the suspect is having difficulty by moving the anchor foot back and
forth. The officer is supposed to be able to distinguish this as part of their
training and to allow the suspect this benefit. The suspect can receive a
maximum score on this test in two ways. This will happen if the suspect puts
their foot down three or more times during the thirty second count, or otherwise
demonstrates that they can not do the test. The officer must be able to
articulate why they felt the defendant could not do this test. The degree of
reliability attached to this test if it is demonstrated and scored properly is
65%. The officer is trained to use this as probable cause to arrest the suspect
for DWI.
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For purposes of the arrest report
and courtroom testimony, the officer is trained that it is not simply enough to
report the suspect's "score" on the three tests. The numeric scores are only
important to the police officer in the field to determine probable cause. It is
insufficient to secure a conviction, and must be accompanied by more descriptive
evidence. The officer is trained that they must be able to describe how the
suspect performed, and exactly what the suspect did when he or she performed the
test and when these clues occurred. The manual provided to the officer has a
standard note-taking guide which should be utilized to assist the officer and
prove the case.
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In conclusion, these three tests
are the standard for all field sobriety tests. They are the most reliable field
tests and should be used in place of any other tests that are being used by
police officers in New Jersey. They are the most objective and reliable tests
for developing probable cause to make an arrest for a violation of the New
Jersey Drinking Driving Law.
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Finally, it is important to point
out that, nowhere in these tests does the officer require that the suspect close
their eyes to perform the test. This will invalidate the reliability of any
test.
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