Administration of the Standardized Field Sobriety Test is one of the methods police officers use to investigate a possible DWI, DUI, or OWI in Washington, D.C. In previous entries, I have discussed potential challenges to the first two components of this three-pronged test: the Horizontal Gaze Nystagmus Test and the Walk-and-Turn Test. Today’s entry focuses on the One-Leg-Stand.
What is the One-Leg-Stand Test?
Like the other two components of the Standardized Field Sobriety Test, the One-Leg-Stand test is a “divided attention” test that requires the subject to concentrate on two things at once. In this case, the subject must pay attention to the officer’s instructions while performing a series of physical tasks.
According to the manual used to train police officers in Washington, D.C., there are two stages to the One-Leg-Stand test. During the “instructions” stage, the subject must stand with feet together and arms at the side while receiving the instruction.
During the “balance and counting stage,” the subject must then raise either leg approximately six inches off the ground with toes pointed out and legs straight. The subject counts out loud in thousands (“one thousand one, one thousand two . . .”) while looking at the elevated foot until told to stop. While the subject is NOT told how long the test will last, the test must take at least 30 seconds in order to be effective. During the test, the officer looks for four specific “clues” in evaluating the subject’s performance. Specifically, the officer determines whether the subject:
- sways while balancing
- uses arms to balance
- hops
- puts foot down
Failure to complete the test altogether occurs when the subject:
- Puts the foot down three or four times during the 30-second period
- Cannot complete the test
According to research by the National Highway Traffic Safety Administration, the federal agency that developed the test, 83 percent of individuals who exhibit two or more such indicators will have a blood alcohol of 0.08 or greater. The manual used to train police officers in Washington, D.C. suggests a 65 percent accuracy rate for determining whether the blood alcohol content of the subject is above 0.10.
Legal Challenges to the One-Leg-Stand Test
1. Legality of the Stop and Detention
The first way to challenge results from the one-leg-stand test is to litigate a pre-trial motion to suppress to prevent the evidence from coming into evidence to begin with. As discussed in previous entries, the manual used to train Metropolitan Police Department officers in Washington, D.C. describes three different phases in detecting a DUI, DWI, or OWI. The first phase involves the officer’s decision whether or not to stop the vehicle. The second phase involves the decision whether or not to ask the driver to exit the vehicle. Finally, once the vehicle has been stopped and the driver has been taken out of the car, the police officer needs to decide whether or not there is “probable cause” to arrest the driver for suspicion of DUI, DWI, or OWI.
The officer is instructed to determine, during each phase of the “detection,” whether there is sufficient evidence to proceed to the next phase in the detection process. Otherwise, further detention will violate the driver’s constitutionally protected right against unreasonable “seizure.”
A pre-trial motion to suppress will challenge the legality of each step in this “detection process.” The motion will first challenge the officer’s decision to pull the driver over to begin with. Second, the motion will challenge the officer’s initial observations of the driver and his/her decision to further detain the driver for a field sobriety test.
2. Administration of the Test
The next step is to challenge the way the test was administered by the police officer. Admittedly, the one-leg-stand test is easier to administer than either the Horizontal Gaze Nystagmus or walk-and-turn test. At the same time, there are many ways in which a police officer can fail to adhere to the very detailed instructions that are prescribed in the training manual. And, because the manual specifies IN BOLD CAPITAL LETTERS that any variation in administering the test compromises the result, a good defense lawyer should be able to use any irregularities in the way the officer administered the test to undermine the court’s confidence in the test results.
3. Test Results Themselves as a Reliable Indicator of Intoxication
Even assuming the test was properly administered, there are serious questions as to the validity of any test results as a measure of the driver’s intoxication. The tests were developed using healthy subjects, usually volunteer police officers, and do not account for variations in age, weight, and other mental and physical characteristics of the subject being tested. Clearly, a 65-year-old man, perhaps suffering from some unrelated physical condition, will have more difficulty performing this test than a healthy 25-year-old man or woman. Does this difficulty suggest that the 65-year-old man is intoxicated?
There are also serious questions with respect to the methodology used in the development of the standardized field sobriety test used in Washington, D.C. As described in greater detail by Steven Rubenzer, a board-certified forensic psychologist, not a single one of the field studies validating the standardized field sobriety test as a method of assessing intoxicated has been published in a peer-reviewed scientific journal. Writes Rubenzer: “[p]eer review exposes the work to the criticism of other researchers and authors who may not share the same beliefs and purposes, and who have the training and experience in valid experimental design. The scrutiny that this process brings is crucial to detecting error and bias.”
In short, as with the other two components of the standardized field sobriety test used in Washington, D.C., there are many ways for a defense lawyer to successfully challenge the one-leg stand test in court.