Nonstandardized Field Sobriety Tests
Ohio has adopted the three-test field sobriety protocol as set forth in the National Highway Traffic Safety Administration (NHTSA) manual for training law enforcement officers. The three tests adopted by NHTSA all survived scientific scrutiny as being indicative of impairment. The tests are: (1) horizontal gaze nystagmus, a test of the subject’s eyes; (2) walk & turn; (3) one-leg-stand. The officer is trained to administer the tests in a standardized fashion and record “clues” of impairment as evidenced by the subject’s performance on the tests.
Often, you will encounter a circumstance where the officer employs an non-standardized field sobriety test. These tests may include nonscientific “techniques”, some of which are described in the NHTSA manual, and can include a finger dexterity test, an alphabet test, a counting test or some other form of confusing coordination test. Some jurisdictions still employ a thoroughly discredited test which requires the subject to tilt their head back and touch the tip of his finger to the tip of his nose.
The first step in challenging the officers decision to employ non-standardized tests is to determine why the officer is employing the tests. Ohio has set forth eleven (11) factors that courts consider in determining whether or not the officer has established reasonable and articulable suspicion of drunk driving sufficient to request that the suspect step from the car. See State v. Evans, citation omitted. It is appropriate pursuant to the NHTSA manual to employ the above-described “techniques” at this phase of the officer’s investigation. Your DUI attorney will know how to use cross examination to establish that there were omissions in the officers investigation, or that the officer lacked the legal standard necessary to ask you to step from the car.
If, however, the officer is using the tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific footing. Your DUI lawyer will challenge these tests as not probative of intoxication and that they are irrelevant for purposes of determining impairment. At least one case, Rocky River v. Horvath, 2002 WL 538755 (Ohio Ct. App. 8th Dist. Cuyahoga 2002) has decided that these non-standardized tests are improper because they have no standardized application and they have not been approved by NHTSA. [Note: this opinion was written by now-Supreme Court Justice Terrence O’Donnell]. The Second District Court of Appeals has ruled that non-standardized tests can come in under the totality of the circumstances used to reach a probable cause determination. State v. Rajehel, 2003-Ohio-3975. The Ohio Supreme Court has ruled that the tests may be used as lay evidence of intoxication. Brooklyn Hts. v. Yee, 2009-Ohio-4552.
If you find yourself needing the assistance of a qualified Ohio DUI lawyer, contact Charles M. Rowland II at (937) 318-1DUI or 1-888-ROWLAND. Charles Rowland has taken the same NHTSA approved training as law enforcement, is Ohio’s only Forensic Sobriety Assessment certified attorney and has honed his skills as both a defense attorney and a prosecuting attorney. Please visit www.DaytonDUI.com to find out more.
Related articles
- Standardized Field Sobriety Tests: What to Expect (daytondui.com)
- Challenging the Standardized Field Sobriety Tests (daytondui.com)
- Standardized Field Sobriety Tests (daytondui.com)
- Rowland Earns Forensic Sobriety Assessment Certification (daytondui.com)
- DUI Court Process: The Stopping Sequence (daytondui.com)
- Reasonable & Articulable Suspicion (daytondui.com)
- Bloodshot and Glassy Eyes Are Not Clues of Impairment (daytondui.com)
- Horizontal Gaze Nystagmus; terms at a glance (daytondui.com)
