Interviewer: What I want to go into are some of the tests themselves, and what they consist of. The first one I know about is the walk a straight line test.
Attorney: It is not the first test administered. It’s called the “Walk and Turn” test. The “Walk and Turn” test is what’s referred to as a divided attention test. There are a few different parts of the test.
This Test Is Known as the Divided Attention Test
What happens is that the police office asks the motorist to stand in a certain fashion, one foot in front of the other, and the police relay the instructions all at one time. They want to make sure that the person can hear the instructions, can understand the instructions and then follow the instructions, and then actually perform the physical act. That is why it has the divide attention classification—being able to physically listen and do something at the same time.
What people should understand is that the divided attention test that is the most accurate measure of whether or not you can operate a motor vehicle is the actual driving of a motor vehicle. Then you have to look at the road, you have to follow the road and do what you need to do.
Of course, when a police officer turns his lights on your attention is divided between driving and understanding what the instructions are to pull over, and you pull over. But they give this test, and then the motorist is asked to effectively walk a tight rope or a balance beam.
Although they’re not off the ground there is the line that supposed to be a straight line, take nine steps touching your heel to your toe. When you get to the end of your ninth step you’re supposed to not just turn around but you’re supposed to perform a special type of turn around with a series of short, choppy steps. Then you’re supposed to walk nine steps heel to toe again, remaining on that line all the way back to the point of beginning. You’re not supposed to step off the line, you’re not supposed to miss heel to toe and you’re not supposed to use your hands for balance.
The Walk and Turn Action Is an Unnatural Gait and People Automatically Use Their Hands for Balance
If you dissect that test, you’ll see how incredibly unfair it is. When we walk naturally you don’t walk heel to toe, you walk one foot next to the other. You also use your hands for balance when you walk naturally—left foot, right hand, right foot, left hand. That’s the way we were designed to walk.
You don’t walk with your hands at your sides. When you turn around we don’t do a series of short, choppy steps, we turn around and we walk back. Of course, professionals, if we watch the Olympics, if we look at people who are professional tight rope walkers, they use their hands for balance.
So they’ve taken what one would naturally do and made it unfair. They will have their clues that you failed—you didn’t pay attention, you started too soon, you stepped off the line, you didn’t touch heel to toe, and then they score it. The scoring that they use is an incredibly unfair scoring sheet as opposed to the way it should be scored.
Interviewer: I know you just explained that, but even with that I’m listening to you and even I’m confused as to what to do.
Attorney: I’m going to tell you probably 80% or more of the “Walk and Turn” test is performed on what’s called an imaginary line, so there really isn’t an actual line to walk on. You’re just supposed to imagine a straight line. Then, of course, I ask the police officer, “Well, how wide is the line? Is it a crack? Is it a foot wide?” Again, how is that fair to a motorist to walk on a line that’s not there, and try and stay on it?
The Police Often Keep Their Flashing Lights on While a Driver Is Performing the Field Sobriety Tests
Interviewer: And I know when a police officer pulls someone over for whatever reason, they will have their lights on, and especially if it’s at night. Would that be considered one of the factors that can actually have a person fail the test?
The Horizontal Gaze Nystagmus Test
Attorney: Absolutely. As a matter of fact, if they’re going to give the standardized field sobriety test, the very first test that should be given is referred to as the “HGN” or the horizontal gaze Nystagmus test. That is a test that is similar to a police officer giving you an eye exam. I’d prefer an eye doctor give me an eye exam. The police officer is looking to see if your eyes react in a certain fashion. Their theory is that the muscles in your eyes are affected by alcohol and it would create an involuntary jerking of your eyes. There are over 40 other things that can cause this involuntary jerking of the eye.
In Addition to Alcohol Consumption, There Are More Than 40 Factors That Can Cause an Involuntary Jerking of Eyes
Then the police are supposed to turn those emergency lights off because, as you mentioned they are distracting, and your eyes are naturally attracted to motion to see what it is. The police, most of the time will come and say, “Oh, I went back to my car and I turned off the lights.”
Most of the time our clients tell us the police didn’t turn off their lights and they were on the entire time. Of course, those can be used in a certain fashion to make sure that the person has the reaction to the light, and the officer comes in and says, “Oh, he had this involuntary jerking of the eyes, and therefore that was another clue that they were intoxicated.”
The One Leg Stand
The third one that they give, if it’s again one of the three standardized ones, is the one leg stand. First, you’re supposed to receive instructions. The officer is supposed to demonstrate to you that you’re going to pick a foot, either one, and raise it six inches off the ground. You keep your toe pointed, look at it, keep looking down at the ground and at your foot, and hold it in the air and count out loud till you reach 30, or until the police officer tells you to stop.
You Cannot Raise Your Arms for Balance during the One Leg Stand Test
Oh, and while you’re standing on one leg, don’t use your arms for balance, don’t sway and don’t fall, don’t hop, but you should just do it like you’re a flamingo.
If you can’t do that, they get to say, “See? You’re under the influence of alcohol.” What I’ve gone through with clients and other people, especially when I do lecture and we play with this, the majority of people can’t do the test.
Some people are better than others at performing the test. Some can hold it up longer than others, but the majority of people can’t hold it until the count of 30. Now let’s picture a driver out on the roadway, like you were talking about. The police lights are flashing, there’s more than one police car there, and cars are driving by. It’s nighttime, you’re nervous, you’re fearful, you’re afraid that if you fail this test you’re going to get arrested, and of course, no matter how you do, the officer says you didn’t do so well.