Updated: Jan 8, 2019
There are four possible clues that officers are trained to look for when you perform the One Leg Stand. Those four clues are:
1. Swaying while balancing,
2. Using arms for balance,
4. Putting your foot down.
Three of the Most Common Issues on One Leg Stand
1. The officer makes a big deal about your counting.
It is the officer’s responsibility to time this test for a total of 30 seconds. He will likely instruct you to count aloud as he times the test. But you counting too quickly or too slowly is not a recognized clue! For the purpose of identifying clues, we may be able to argue that it should not matter if you counted to 7 or 77 during this test—the officer is the timekeeper!
2. Officer identifies clues outside of the 30 second window.
Again, it is the officer’s responsibility to stop the test after 30 seconds. If he allows the test to run too long (because you’ve only counted to 22, for instance), it is arguably improper for him to count any clues after 30 actual seconds have passed! It’s a 30 second test—once that window closes, we may be able to argue that any “clues” that you displayed should be disregarded because that is no longer the test.
3. Officer stops the test once you put your foot down.
While putting your foot down during this phase of the test is a “clue,” it does not mean that the test is over! Officers are trained to ask you to lift your foot back up and continue you counting. We may be able to argue that an officer deciding on his own to end the testing here should not be held against you.
A Final Word On Field Testing
By no means is the proceeding information an exhaustive account of all the ways that your officer’s field sobriety results can be attacked, and only an experienced DWI attorney can tell you how your performance on the test can best be interpreted.
I am a strong proponent of the common-sense observation that every case is unique. Every case comes packaged with its own set of facts out of which we get to cobble our defense. In many cases, the unique combination of facts will allow a good defense attorney to make arguments that would be virtually impossible on any other case! That’s why it’s so important for a good DWI attorney to have completely internalized the field test, it’s goals, and the policy behind it. Your attorney’s knowledge of the tests should be automatic. You have to live and breath the fundamentals so that you can work on the art of defending each individual case rather than the science of the general field testing principles. You cannot focus on artistic flourishes at trial or during negotiations without first mastering the fundamentals.
The field sobriety test is by no means the end-all of your case. There are many other factors that play into your defense. To name just a few, a good DWI attorney will want to look at all the following before making a final analysis of your case:
1. How you were driving.
2. How you sounded on video.
3. Statements that you made to the officer.
4. The result of any portable breath test.
5. Any breath test result obtained at the station, and how to get around a >.08 result.
6. Whether any in-custody questioning was done, whether Miranda warnings were given.
If you have any questions about how field testing was done in your case, give me a call at 479-871-9602 to schedule a meeting.
 Keep in mind that these are also arguments that your attorney can make at trial, not statements of law. It is ultimately up to the judge or jury to determine how to interpret the officer’s testimony, knowledge of the field tests, and your performance.