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OVI Law: The Officer Can Testify Even If He/She Was Incompetent

Dayton DUI Attorney Charles Rowland > DUI Law  > OVI Law: The Officer Can Testify Even If He/She Was Incompetent

OVI Law: The Officer Can Testify Even If He/She Was Incompetent

Officer, have you been drinkingImagine for a moment that you are stopped for suspicion of drunk driving.  The officer asks you out of the vehicle and begins to administer “standardized field sobriety tests.”  You start to notice that the officer is unsure of himself.  Maybe he/she give contradictory instructions or stops you and tells you to do it a different way.  As the tests proceed you begin to fear that the officer does not know how to properly administer the tests.  Surely, this will not be used against you in court, right?

It is the burden of the state to demonstrate the admissibility of the standardized field sobriety tests. R.C. 4511.19(D)(4)(b).  In State v. Syx, 190 Ohio App.3d 845, 2010-Ohio-5880, 944 N.E.2d 722 (2nd Dist. Montgomery County 2010), the court was faced with an officer who admitted that he was not trained in the proper administration of the standardized field sobriety tests in the police academy.  What’s more he had never taken any subsequent training.  This would be like asking any person off the street to assess a person’s level of impairment simply by looking at them and observing how they walk.  At the motion to suppress hearing the court found that the officer did not comply with any standards and that the tests were improper.  However, it would allow the officer to testify as to his observations.  The court reasoned that since a layman could relate his observations so could the officer in this circumstance.


Presumably, the court expects a jury to know that the officer is just testifying as a layman.  This ignores the fact that the officer will have the presumption of authority that makes his/her testimony automatically “expert” in the eyes of the jury.  The prosecutor will ask the officer what experience and training he has as a police officer.  The prosecutor will establish that he has been on the police force for many years and trained at a police academy.  He/she may also relate how many OVI arrests they have made and how many times they have come into contact with intoxicated people in the course of their career.  The court in Syx also fails to contemplate that the jury may have an intuitive understanding that walking a line or standing on one foot is part of the roadside tests used to evaluate whether someone is drunk.  Whatever connotations of reliability they bring with them will be transmuted to the officer’s testimony making it far more than simple lay observations.

You may be wondering why an OVI attorney would be complaining.  Surely, you will be able to challenge the officer’s testimony and provide context to the jury via cross-examinaton.  You will be able to tell the jury about the importance of standardization and how non-compliance with government testing procedures renders the tests invalid.  WRONG. In Syx, Id., the court prevented the defense from cross examining the officer about context, training or his ability to correlate his observations with any sort of standard.  The holding says the defense cannot ask any questions related to how the officer was so incompetent that he failed to comply with known standards.  Effectively, the more incompetent the officer is in administering the tests, the more valuable his/her testimony will be in front of the jury as it will be shielded from cross-examination.  The prosecutor can ask, “What did you see when you asked the defendant to walk the line/stand on one leg” knowing that the indicia of reliability is built into the jury via popular understanding of roadside testing.

This is an example of how far we have stretched the boundaries of fairness and due process in the context of drunk driving.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber Heights,Beavercreek, and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Charles Rowland


Charles M. Rowland II has been representing the accused drunk driver for over 20 years. Contact him at (937) 318-1384 if you find yourself facing a DUI (now called OVI) charge.

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