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The one leg stand is the third of the three proscribed NHTSA tests. People who do poorly on this test are overweight individuals and people over the age of 65. Although the manual doesn’t address this problem it would seem individuals suffering from prior leg injuries or those who have foot or ankle problems are also not people expected to do well on this test regardless of sobriety.
An officer to have you perform this test will give you the following instructions and demonstrate the test before you perform. Those instructions are as follows:
1. Stand with your feet together and your arms down at your sides.
2. Do not begin the test until you are told to do so.
3. Do you understand me so far. (Note; the officer will show you how he wishes you to stand.)
4. After you are told to start I want you to lift either leg where your foot is approximately 6 inches off the ground and parallel to it. (Be aware the officer during his demonstration of lifting his leg will not look at his raised foot though he is about to tell you that is what you must do. The officer will say he doesn’t look at his foot during the demonstration because of officer safety reasons. This is mentioned so you don’t just copy the cop you must listen too.)
5. Both of your legs must be straight (knee not bent) and your arms must be at your side.
6. I want you to count in the following manner out loud. One thousand one, one thousand two, etc. I want you to continue to count until I tell you to stop. (Many officers ask you to count to a certain number. If he tells you to count to a specific number his instructions are wrong but do what he tells you to do.)
7. You must keep watching your raised foot and keep your eyes on you raised foot throughout the test.
8. You will be asked if you understand what the officer has told you to do. If you indicate you will be told to commence the test.
The officer is looking for a number of clues in order for him to conclude you did not perform this test properly. Remember the officer is looking for perfection. You are human. Go figure. Those clues are outlined below as follows:
a.) Does the suspect sway while balancing? NITSA tells the officer to look for a forward to backward sway or a side to side sway. (Officers who have been around for a long time eventually modify their conclusions as it relates to the observed sway. Forward and backward sway or side to side sway is NOT indicative of alcohol impairment and may be explained as many things other than alcohol impairment. Those of you who have been impaired by alcohol will remember if you are affected by alcohol and you close your eyes the room will move in a circular motion. I this writers opinion, SWAY is not a valid clue.)
b.) Does the tested person use his arms for balance?
c.) Does the tested person resort to hopping in order to keep from putting the raised leg down?
d.) If the tested person puts his foot down one or more times, is the last clue.
A subject’s failure to perform two or more of the above clues properly shall result in a failure of the test.
This test is a divided-attention test designed to split the subject’s attention between mental and physical tasks. To successfully complete the test all you must do is keep your foot 6 inches off the ground for a period of time the officer should count as thirty seconds without hopping, swaying, raising your arms, and not breaking eye contact with your toe during this timed interval expires. (If you hold records on “Wii Resort” or some other video game this should be duck soup.)
So Bob and a couple of friends decide to go out one evening and end up at Mulberry Street in Fullerton. Mulberry’s has a small but regular crowd. Bob didn’t drink much and the three left shortly after arriving with Bob behind the wheel. Less than a mile later Bob sees in his rear view mirror the too familiar red light. He pulls over.
The officer’s approach was uneventful, and so were the questions he asked Bob near his car. Bob performed the nystagmus test and the walk and turn test. He did them both well. Then came the walk and turn.
Bob was asked to stand with his arms at his side with his feet together. He was instructed about the remainder of the test and was told to start. Bob never put his foot down and never hopped. He counted to one-thousand thirty eight when the officer said stop. He did raise both arms from his sides during the test and felt himself slightly sway. Did Bob fail this test? (Note; A sober person can fail this test.)
To properly evaluate this performance you must know the following considerations; the arms can come away from the side by up to 6 inches without a demerit. Bob’s hands came away from his sides but not to exceed 6 inches. This is not a failing performance.
Bob’s slight sway is not a failure to perform the test properly. The sway observed by the officer must be a distinct sway. A slight sway is not a failure of this test either.
If the officer relies on the subjects count to thirty and not by his watch and that count exceeds thirty seconds. The entire test is invalid. Bob’s friends were all using their second hands to time the test. They all agreed Bob was in that position for 38 seconds. Yup the test was invalid. But you might ask whether his friends at trial will be believed. (More on that later.)
CAVEAT; If you put your foot down 3 or more times or are unable to complete the test. . . . YOU FAIL THIS TRST COMPLETELY.