Interviewer: You mentioned the One-Leg Stand. Let’s go through some examples of these field sobriety tests and how they’re administered, what the individual is going to be facing, what challenges and how that particular test is going to be reflective during the case. Let’s start off with the One-Leg Stand test first.
Court Koehler: So what the officer has you do is stand with your feet together and you put your arms down at your sides and then of course, the whole time the officer is giving you instructions. He’s watching to see if you’re following them exactly correct. If you start the test by lifting your leg before he says, “Start”, that’s a clue that you’re intoxicated. Really, it could just mean that you didn’t hear him the right way, or something like that. But that’s a clue according to the National Highway Traffic Safety Association.
When the test begins you raise one of your legs and you keep it 6″ off of the ground and parallel to the ground. While you’re holding your leg up, you’re supposed to count out loud – “one thousand one, one thousand two, one thousand three” – and you keep counting until the officer tells you to stop. The other thing is sometimes the officer will have you go for a really long time. He may have you go 20-30 seconds. I think actually they’re supposed to do 30 seconds. So you’re counting that whole time and your leg may be getting tired and you’re starting to feel a little awkward, and you’re wondering if you’re supposed to stop. If you stop, that is a clue that you didn’t listen to the instructions the right way.
Also, you’re supposed to keep your arms down at your sides the whole time. So what the officer is watching for, in addition to you following clues, is things like if you raise your arms from your side very far, or if you put your foot down, and just your general balance. If you’re not able to stay straight, or if you’re swaying a little bit, if you hop or if you put your foot down – any of those things are also clues.
And the way they do this is they usually have a scorecard. They actually have a scorecard that they go through when they do the test. So they’ll mark down if you missed that instruction there or you put down your foot there, you raised your hands. So when you get done, you’ll have a certain number of clues and if you have more than a couple, then they don’t really say that you can fail the test, but in practicality if you screw up more than a couple of things, then they’d say you failed the One-Leg Stand test.
Interviewer: Do you think that there’s miscommunication on that one? Do you think that people think in that particular test that there are particular things the police officer says that they might not understand? Have you seen a pattern?
Court Koehler: Yeah, I do. And a lot of it depends on the police officer. Some police officers can be really good, especially I think with the One-Leg Stand test in particular. It’s easy to make the person feel awkward, because they’re in this position, and they’re holding their hands down, and they’re counting out loud. I’ve seen, more often than in other tests, someone just feel uncomfortable and stop counting, or ask if they’re supposed to keep counting or something like that. Literally you’re standing there for 30 seconds and if you sit in a chair and you put 30 seconds on the clock, and you just sit there in silence, you can see that’s a pretty long time to actually be standing there with your leg up.
You’re in an awkward position and you’re doing something unnatural, and this officer is watching you. You’re obviously going to be nervous if you’re going through this process anyway, whether or not you’re intoxicated. I don’t really trust any of the field sobriety tests, but of all of them I think the One-Leg Stand test is probably the least accurate, and the most able to manipulate and have somebody misunderstand the directions, and things like that.
Interviewer: I’ve heard stories sometimes where a police officer would say, “If you get tired you can put your foot down,” and so that person will do that and that will count against them.
Court Koehler: Yeah, that’s terrible. I haven’t seen anything like that recently. But that’s a good example of why I don’t trust these tests. I’ve seen one case where – I don’t know if it was the One-Leg Stand test or the Walk-and-Turn test, but – what the officer said was, “Okay, I’m going to give you some instructions,” and the subject says, “Okay,” and the officer says, “Okay, I want you to stand with your feet together.”
What my client was doing was waiting for the rest of the instructions before he started. So he said, “Okay, I’m going to put my legs together, and then what do I do?” And he’s waiting for the officer and the officer just pauses and just stares at him for a second. My client just kind of looks at him and gives him the palms up like, “What am I doing wrong?” and the officer goes, “You’re already failing the test,” and my client goes, “Well, what do you mean? I haven’t even started yet.” He goes, “You didn’t put your feet together.”
They say, “I’m going to give you a set of instructions: stand with your feet together.” It’s reasonable for somebody to wait for the rest of the instructions before they start the test. I don’t think it’s necessarily conclusive that somebody’s intoxicated just because they failed to do the instructions in the exact way that the officer intends for them to do them. So that’s an example, too, where you can get a miscommunication that can be overblown. Sometimes a more suspicious mind can say that the officer is trying to make things hard to follow and hard to understand so that they can gather clues and so that they can then turn it against you. But that’s what a more suspicious person might suggest.