SC DUI Field Sobriety Tests Part 3: The One Leg Stand
This is the third part of a three part blog series on the most commonly used DUI Field Sobriety Tests. Part 1 covers the Horizontal Nystagmus Gaze Test, and Part 2 covers the Walk and Turn Test. This blog will cover everything you need to know about the One Leg Stand Test.
The one leg stand sounds fairly straight forward, but there are so many things to consider in this important test.
You are literally asked to pass a test that your entire future depends on the result. And you have never even thought about it, much less practiced it.
The third and final field sobriety test commonly used is the one leg stand. In this test, you are required to stand on one foot for an unknown period of time (determined by the officer) to test balance.
This is yet another type of test where the officer is asking you to do things you do not do on a regular basis. In fact, I can’t recall the last time I have seen any adult standing around on one foot in public. Kids maybe, but not adults.
And here you are again auditioning for your life/your future with police standing around gawking and cars passing by with nosy people slowing down and “rubbernecking.” It is not your finest moment, and everyone is just around watching, judging, and it’s all being video recorded.
You are not allowed to practice. You get one shot, and if you can’t stand on one foot for however long (usually more than 30 seconds), you are deemed to “fail” the test, are “impaired,” and you are going to jail for DUI. You are not allowed to put your foot down. You are not allowed to use your arms for balance. If you are a naturally clumsy person, this is not taken into account. The only “clues” law enforcement are looking for are the ones they interpret to deem you under the influence and impaired.
In a flash your life just got super complicated all because you couldn’t stand on one foot!
How The One Leg Stand Test Works:
In the Instructions Stage of the one leg stand test, you will be asked to stand with your feet together, heel to heel, toe to toe. Your arms must remain at your sides at all times. You should not start the test until you are told to. You should be asked at this point, do you have any questions?
Ok, already this is a lot to remember. Keep your hands, arms, feet and toes perfect, and don’t move. It’s starting to sound like a Simon Says game. Only this is no game. Whether or not you listen to instructions and coordinate your body -- you have all things riding on passing this test!
Next, the officer should demonstrate to you exactly how to perform the test. This is called the Balance and Counting Stage. When the officer tells you to start, you raise either leg with one foot approximately 6 inches off the ground. Hope you can estimate with your foot to the ground how far half of a ruler is. Huh? This is awkward. Most people have never stood on one foot and pondered how many inches their foot is raised.
Not only will you be asked to raise your foot 6 inches, you have to keep both of your legs straight. Do you lock them out? I don’t know. The test requires you not to bend your legs. Then, while doing all of this, you have to keep looking at your raised foot. Oh, and also keep your hands by your side. You can’t sway. You can’t put your foot down for a rest. You can’t “hop” or anything like that. You can’t use your arms to balance. You have to stand there, legs straight, foot 6 inches off the ground and look at the raised foot.
And, there’s more. You have to do all this by counting out loud. And you don’t count the way you count every day (1,2,3,4). Nope, that would make sense to be asked to do something that you’ve been doing every day of your life since you learned to count. No, during this test, you have to count like this “one thousand one, one thousand two, one thousand three” and so on. For how long? Until the officer says stop.
Problems With The One Leg Stand
The Field Sobriety Tests are supposedly designed to be a pass/fail indicator of whether a person is under the influence of substances that would mess up their ability to drive a vehicle (impaired).
However, these tests aren’t as black and white as law enforcement would like to claim. There are so many factors that can interfere with this test. This blog article explores just a few. There are many more.
What kind of shoes were you wearing? Tennis shoes? Flip flops? High heels? Barefoot?
I have actually taken these tests on two different occasions in a lab/controlled environment. In the “wet lab”, law enforcement officers were being trained on their ability to administer these tests according to the national standards. Yes, I volunteered for this exercise and learned much more than I could ever learn from reading text books and case law.
I know first hand… this test is difficult in high heels or in flip flops. I tried it bare-footed and found it somewhat easier; however people with foot problems, big feet, or flat feet have told me this test is hard. If you are somebody that’s particularly awkward, clumsy and difficult, the test won’t be easy for you either. I have had cases with men trying to complete these tests in steel toe boots. Not super flexible. Not made for standing on one foot. They didn’t know they had the choice to remove their shoes. The officer didn’t tell them. All they knew was to comply with the instructions. I’ll bet no one when they were buying whatever shoes they end up wearing during a field sobriety test contemplated whether they would be good shoes for standing on one foot! The officer should give you the option of removing your shoes.
I haven’t tried standing in one foot in steel toe boots, but I can imagine how hard it would be. Standing barefooted on one foot is hard; standing in high heels on one foot is hard. And the surface where you are standing can make it even harder.
What is the ground condition? Are you in sand? Gravel? Loose gravel? On a hill? Flat surface? Is the ground wet? Are you on an incline or hill?
All of these factors can have a huge impact. I have actually had a case where my client was standing on an ant hill trying to carefully perform this test.
What is the weather condition? Is it raining? Sun shining in your eyes? Hot or cold?
If you are trying to stand on one foot in the freezing cold, rain, or wind, these factors will affect your test. If you are standing on one foot with sweat pouring down your head and into your eyes, this could also be a factor. You are not supposed to move your arms during this test. So how do you wipe the sweat off your brow? How do you scratch your face when a flyaway hair is tickling it? You don’t. You can’t. You have to just stand there and be super uncomfortable and awkward and hope you pass.
What do you see and hear? What kind of movement is going on in your side/peripheral vision? Are there passing cars in your side view? If so do these cars have their headlights on? How fast are the cars going? Fast enough to blow your hair or clothes? Are the cars creeping by and gawking at you while you are trying to stand on one foot? What do you hear? Is there a train going by? Someone blowing the horn and startling you? Loud sirens? Are the flashing lights turned on of police cars, ambulance, or fire trucks?
National standards say movement going on in the corners of your eyes should be very limited if not eliminated all together. I had a case where during the entire time the client was taking the test, cars were constantly running over this metal plate in the road and causing a loud noise. I couldn’t hear the instructions from the officer on the video. I had another case where a group of very loud motorcycles came riding by the roadway where my client was taking the field sobriety tests.
I get it -- police can’t control every aspect of testing conditions and neither can you… but if there are common sense factors other than someone being impaired that could make you fail this test, your attorney needs to be making these arguments.
Is your entire body, particularly your feet visible during the video recording of this test?
You may be surprised to learn that the entire “show” must be recorded. It is required by SC law. When I was working as a prosecutor, during one of my DUI jury trials I saw a defense attorney during a trial ask a police officer to get out of his seat on the witness stand and demonstrate the tests in front of the jury. The tests are awkward for anyone, even police officers. The tests are not 100% foolproof and accurate.
Police are required to properly instruct you on how to perform the tests according to the National Standards. If they mess up telling you how to do the test, how can they say they saw “clues” that you failed the test? That’s why it is very important that you are given the correct instructions.
Time length of test
How long should you be out there on the side of the road standing on one foot doing the Simon Says stuff? The standards say at least 25 seconds, seldom as long as 30. Have you looked at the video of your field sobriety test? If you are standing around on one foot for more than 30 seconds and then you stumble, flail your arms or hop, well then you may have still passed the test! The officer should be paying attention to how long you are standing around on one foot.
Want to see what some failed attempts at this test look like?
A lot of things going on in this one test! Here are some examples that I have seen that people are giving it the old college try, but it doesn’t count to pass the test:
- Count “regular” (1, 2, 3). Nope, that was wrong because they didn’t count one thousand one, one thousand two, one thousand three.
- Count One Thousand One, Two thousand Two, Three Thousand Three. Nope, that’s wrong because they didn’t count one thousand one, one thousand two, one thousand three.
- Stand on one leg and count, but in their head. Nope, that’s wrong because you have to count out loud.
- Stand on one leg and wait for the officer to count out loud. Nope, that’s wrong because the officer only counts out loud for demonstrating the test; you have to count out loud for your test.
- Stand on one leg, count out loud properly and stop at 9 or 10. Nope, that’s wrong because you can’t stop counting until the officer says to stop. This one happens sometimes because people get it mixed up with the “walking heel to toe test” where you take 9 steps forward, turn and take 9 steps back.
Confused when reading this article? Yes. But even more confusing when you are doing it in real life and have to get it all perfect the first time!
Need help with your DUI case?
People always ask me, how can you challenge a DUI case? There are so many ways. If the attorney you select keeps up with current DUI law, they should be looking for these clues and know the National Standards backwards and forwards.
A DUI conviction can have devastating, permanent effects and collateral consequences. You could have your driver’s license suspended, face fines, jail time, be required to carry SR-22 Insurance (super expensive) for at least 2 years, complete the ADSAP class, and possibly be required to have an Ignition Interlock Device installed on your car.
A DUI is not expungeable in SC. This means you can’t get it erased from your criminal record ever -- once you have been convicted of DUI.
Questions about DUI? Contact Attorney Susan E. Williams.
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