Have you been arrested for driving under the influence (DUI) in New York state and asked to perform the One Leg Stand (OLS) standardized field sobriety test? What exactly is the OLS and what is its effect on a DUI prosecution?
Being arrested and charged with driving under the influence (DUI) is an extremely stressful situation. In New York state, DUIs are covered under Vehicle and Traffic § 1192 – Operating a motor vehicle while under the influence of alcohol or drugs. Depending on the facts and circumstances of your arrest and your driving history, it means you could be facing anything from fines and a loss of driving privileges to a substantial term of imprisonment. It can also be the difference between a violation, misdemeanor or a felony conviction. Moreover, New York is an implied consent state, meaning that anyone stopped for suspected DUI is implied to have consented to a battery of field sobriety tests. Refusal to take the tests can result in additional penalties from the Department of Motor Vehicles (DMV).
As discussed below, one of the many field sobriety tests that law enforcement in New York will administer is the One Leg Stand Test (OLS).
The One Leg Stand Standardized Field Sobriety Test
The OLS is one of a battery of standardized test that law enforcement uses to determine if someone is under the influence of alcohol. It has been validated through extensive research sponsored by the National Highway Traffic Safety Administration (NHTSA) and has been found to be a reliable test, provided it is administered in accordance with specific standardized procedures.
In many jurisdictions, including New York state, the results/conclusions of the OLS test are only admissible as evidence of someone being under the influence of alcohol if the prosecution can provide a proper foundation for the reliability of the results. Thus, the prosecution has the burden of proving the test was both: 1) properly performed and 2) by someone who was properly trained to administer the test.
The standardized nature of the test is the cornerstone to the reliability of the test’s results. Thus, the test must be administered in accordance with the specific standardized procedures for the results to be reliable. If not, the results are inadmissible as evidence by the prosecution. Indeed, in a notable case, People v. Hillman, 2019 NY Slip Op 51555 – NY: City Court 2019, the court determined:
[T]he results of the field sobriety tests are inadmissible because the People have failed to prove that they had been administered in a manner consistent with the “Concepts and Principles of the Standardized Field Sobriety Tests” manual promulgated by the National Highway Traffic Safety Administration (NHTSA). Therefore, the Court cannot rely on the field sobriety tests, thereby stripping the test results of any probative value.
So, the big question is: what are the NHTSA standardized “Concepts and Principles” regarding the OLS test?
Anatomy of the One Leg Stand Standardized Field Sobriety Test
What exactly is the One Leg Stand (OLS) standardized field sobriety test?
In short, the OLS is a divided attention test – it tests the subject’s ability to perform both a mental task (i.e., comprehending and following verbal instructions) and a task that involves their motor skills (i.e., maintaining balance while standing on one leg). Thus, it has two stages: 1) the instruction stage and 2) the balance and counting stage.
In the instruction stage, the subject is asked to: 1) stand with their feet together; 2) keep their arms at their sides; and 3) listen to instructions.
During the balance and counting stage, the subject is asked to: 1) raise one foot (either foot) approximately six inches off the ground/floor; and 2) while looking at the raised foot, count out loud in the following manner: “one thousand one”, “one thousand two”, “one thousand three” until told to stop.
Timing the test for a 30-second period of time is an important part of the OLS test, as research has shown that people that are impaired are usually unable to perform the test properly for 30 seconds.
Law enforcement is advised however, that there are various factors that should be taken into consideration when administering the test, as such factors can negatively impact the results. Such other factors include, but are not limited to the following:
- The conditions of the surface the subject is standing on (i.e., leveled/flat, slippery, hard, wet);
- Whether the subject has specific medical conditions (i.e., back, leg or inner ear problems);
- The type of footwear worn by the subject;
- The subject’s age (i.e., elderly; and
- The subject’s weight (i.e., obesity).
So, have you been arrested for driving under the influence (DUI) in New York state and asked to perform the One Leg Stand (OLS) standardized field sobriety test?
In New York state, the administration of standardized field sobriety tests, like the OLS, are recorded on video which is produced to defense counsel during the discovery process. Reviewing all the discovery in the case file is always important. However, this is particularly true when there is video regarding the administration of tests in a DUI case. Very few things reveal the strengths and weakness of a case like a clear video of what actually transpired during the administration of standardized field sobriety tests such as the OLS test. There are many reasons other than being under the influence that would hinder someone’s ability to perform the OLS test. This is especially true if the OLS test is not administered in accordance with the standardized procedures. In such cases it is not uncommon to have the results of the OLS test suppressed.
Hiring a Criminal Defense Attorney
Navigating the criminal justice system is difficult and has serious consequences. Hiring a criminal defense attorney is one of the single most important decisions you will make in your life. Make sure you hire an attorney that takes time to understand you as a person and your case in its entirety.
At the Law Office of Kevin J. Deloatch, Esq., each case is handled from the initial stage with trial in mind. This enables me to not only understand the strengths of the defense, but more importantly, to effectively convey to the prosecutor the weaknesses of their case.
If you or someone you know has been charged with a crime in New York call the Law Office of Kevin J. Deloatch, Esq. at (646) 792-2156. The results of all criminal prosecutions are determined by the facts and circumstances of your specific case and the skill and experience of your defense attorney. Call today for a free consultation.