Along with the HGN test, the next most popular field sobriety test in Michigan is the one-leg-stand. Like the HGN, the test must be properly administered in order for it mean anything for the prosecution, and as a piece to the puzzle of deciding intoxication and/or impairment.
If the defense does not properly evaluate and challenge the procedure and the instructions then it doesn’t matter, because the results are the only thing that a judge or jury will see.
The instructions for the one-leg-stand are very specific and listed in the National Highway Traffic Safety Administration (NHTSA) manual. Here are the instructions, which must be adhered to for a proper test:
#1 - Stand straight and put your feet together
#2 - Keep your arms at your side
#3 - Stay this way until told otherwise
At this point the officer must ask the participant if they understand. If the participant says they understand then the officer will continue:
#4 - Please raise one leg, it can be either leg
#5 - Keep your leg 6 inches off the ground, and point your foot out
#6 - Keep both of your legs straight and your eyes on the elevated foot
#7 - The officer will then have the participant count 1001, 1002, 1003 and so forth until told to stop.
The officer should administer this entire instructional and balancing/counting in thirty seconds. The NHTSA manual instructs the officer to look for the following clues for impairment:
If the participant sways, uses arms to balance, hops and/or puts his/her foot down. If the participant can’t perform the test, then you’re marked down for showing signs of all four.
Most of the time, the officer doesn’t administer this test correctly. The conditions of the road may not match what is required (flat/even surface among others), he may not have given the proper instructions or used the proper thirty second timeframe.
Most defense attorneys do not even bother to review the videos and scrutinize the officer reports enough to actually realize this, and if they do, they need to know what to do with it.
Like the HGN, a false positive test may not be the smoking gun, but it is piece of the puzzle of shining light on the prosecution’s inconsistent and questionable case. If the defense can show that a few of the field sobriety tests are not reliable, and can show any cracks in the officer’s credibility who improperly administered the exams, then it’s a big win for giving the jury something to hold their hat on when it comes to finding reasonable doubt.
DUI Attorney & Former Prosecutor Jonathan Paul