DUI Defense – Attacking the DUI one-leg stand test

The one-leg stand test must be given correctly

Although the National Highway Traffic Safety Administration (NHTSA) has standardized the one-leg stand field sobriety test, many officers fail to administer it in the manner required. For example:

• Some officers will have you count out loud to 15 while holding your foot up.
• Other officers will tell you to count silently to 30 in the same pose.
• Still others will tell you to keep your foot up until the officer tells you to put it down.
• Some officers want your hands held at the side during the test, others want your hands held parallel to the shoulders.

If the police officer claims that you have “failed” the one-leg stand test then your attorney may attempt to raise a reasonable doubt about this result.

Sample cross-examination of arresting DUI officer about the one-leg stand test

The following is a sample cross-examination of an officer about the one-leg stand test:

Q: Officer as I understand it you told the defendant to stand with her feet together, put her arms at her sides, raise her foot off the ground six inches, look at her toe, and count to thirty seconds in the following fashion, one thousand and one, one thousand and two, one thousand and three, etc.?
[These instructions are incorrect. The actual NHTSA instructions require the person to hold the foot off the ground in a stiff-leg manner and to hold the foot parallel with the ground. Also the person is not told to count to thirty, but rather to count until told to stop. The officer keeps track of the time.]
A: That is what I told her.

Q: Did you explain the instructions to the defendant in the same manner that you explained the instructions to the jury today?
A: I always explain the instructions the same way.

Q: I take it then that your answer is yes.
A: My answer is yes.

Q: Because, I couldn’t help but noticing sir, that you gave the entire instructions to her in 14 seconds?
A: I suppose. I don’t time them.

Q: Well, I timed them when you gave them in court today, and the instructions took all of 14 seconds?
A: It probably did then.

Q: And there are a number of tasks you ask her to do during this 14 second briefing?
A: There are only 5 or 6 instructions.

Q: Well then, that would permit a grand total of about 2 to 3 seconds of time per instruction?
A: Probably.

Q: The defendant did not grab onto you for balance during the test?
A: No.

Q: She did not ask you to stop the exercise?
A: No.

Q: Her hand never touched the ground?
A: No it did not.

Q: She did not hop up and down?
A: No.

Q: She did not fall to the ground and scrape her knee?
A: No she didn’t.

Q: What she did do is put her foot down a few times during the exercise, and raise her arms up?
A: Yes, and she also failed to hold her foot off the ground six inches.

Q: She did not hold her foot off the ground six inches in your opinion?
A: Yes, she only held her foot three inches off the ground.

Q: You told her to look at her toe?
A: Yes.

Q: Her toe is part of her foot?
A: Of course.

Q: Her toe was six inches off the ground wasn’t it?
A: Yes, but I meant the bottom of her foot was supposed to be six inches off the ground, not her toe.

Q: When I went over the instructions that you gave her for this exercise you did not mention this, in fact you said and I quote: “I always explain the instructions the same way”?
A: I do.

Q: By the way, she did not do the exercise in tennis shoes did she?
A: No she had dress shoes on.

Q: Well, dress shoes does not give the jury a complete picture does it, these dress shoes had heels?
A: Yes, but I wouldn’t call it a high, high heel.

Q: Well it wasn’t a low, low heel either was it officer?
A: No, they were raised somewhat.

Q: Officer, prior to the evening you arrested my client you had never met her before?
A: Never.

Q: I take it then you had never previously given her the one leg stand exercise before?
A: I had never met her before.

Q: Then I presume you do not know how she would perform on the one leg stand if the exercise was given to her in the morning or in the afternoon when she had not been on her feet all day?
A: I do not know.

Q: And is it fair to say that you do not know how she would perform if she was wearing tennis shoes?
A: I can’t say for sure.

Q: You do not know how she normally performs on this exercise do you?
A: All I can tell you is how she performed.

Q: And if you don’t know how she normally performs, you cannot tell the jury her performance on the one leg stand was affected because of alcohol?
A: I have an opinion.

Q: For that matter you cannot tell the jury how she normally performs on any of the FST’s, because you do not know what her baseline performance is for any of the FST’s?
A: Like I said, all I can tell you is how she did on the night I observed her.