DON’T LET IT BE FORGOT, THAT ONCE THERE WAS A SPOT, FOR ONE BRIEF SHINING MOMENT, THAT WAS KNOWN AS CAMELOT.
In State v. Homan, 89 Ohio St.3d 421, 2000-Ohio-212, 732 N.E.2d 952 (2000), the Ohio Supreme Court ruled in favor of requiring the government to strictly comply with the standardized testing procedures set forth in the National Highway Traffic Safety Administration (hereinafter NHTSA). NHTSA is the government agency tasked with determining what quasi-scientific tests are indicative of alcohol impairment. The court concluded that “even minor deviations from the standardized procedures can severely bias the results.” In enforcing the strict compliance standard the court noted that adherence to the rule was “neither unrealistic nor humanly impossible.” It was a victory for defendants, for scientific standards and for the judicial system’s continuing effort to search for and uphold the truth.
KING ARTHUR: Wrong or right, they have the might, so wrong or right, they’re always right, and that’s wrong… right?
Fearing that requiring officers to adhere strictly to scientific standards would result in fewer drunk driving convictions, the Ohio legislature undertook to gut the Supreme Court’s decision. The Ohio legislature passed a law that a law enforcement officer need only demonstrate substantial compliance with the testing procedures. Ohio Revised Code 4511.19(D)(4)(b) sets forth the rules that standardized field sobriety tests can be admitted as evidence if the government demonstrates by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted tests in effect at the time the tests were administered including but not limited to the standards set forth by the National Highway Traffic Safety Administration. The new rule is a far cry from the language in the Homan “even minor deviations from the standardized procedures can severely bias the results.” in administering the tests. ruling; “
Compounding the problem for judges and lawyers was the fact that “substantial compliance” was not defined in the law. Judges, having only the guidance that the new standard was lower than strict compliance, began the job of setting their own standards. Predictably, the cases following Homan have applied the standard in such a way as to make it easier for the government to gain DUI convictions. Below are some relevant cases taken from OHIO DRIVING UNDER THE INFLUENCE LAW, 2009-2010 ed., Judge Weiler, K. Weiler:
State v. Chrzanowski, 180 Ohio App.3d 324, 2008-Ohio-6993 (11th Dist. Portage County 2008), “Abstract deviations” in administering the one-leg-stand surch as failure to ask the defendant twice if he understood the directions and in the officer’s failure to use the exact wording of the manual do not warrant excluding the results.
State v. Lange, 2008-Ohio-3595 (12th Dist. Butler County 2008), Making a pass too fast by one or two seconds during the HGN test does not mean it was not conducted in substantial compliance.
State v. Smith, 2008-Ohio-3251 (11th Dist. Portage County 2008), Holding the stimulus between 10 to 12 inches from the suspect’s nose in administering the HGN and the measurement of a 45 degree angle necessarily require an approximation.
State v. Krumpelman, 2008-Ohio-6689 (1st Dist. Hamilton County 2008), The argument that substantial compliance can be resolved by a mathematical equation (as the officer left out a certain percentage of the required words) has been rejected.
Brookpark v. Key, 2008-Ohio-1811 (8th Dist. Cuyahoga County 2008), A real line is not necessary in conducting the walk-and-turn test as the NHTSA manual permits the use of an imaginary line.
State v. Smith, 2008-Ohio-3251 (11th Dist. Portage County 2008), Conducting the tests in heavy rain did not affect their admissibility where there was no evidence that the surface was slippery.
When people ask me why I dedicate my practice to the defense of the drunk driver, I always tell them the story of Ohio’s rejection of science and high standards in favor of easier convictions. I also tell them the story of State v. Vega and how you are not allowed to challenge the basic assumptions underlying the breath test machine as it (like the Pope) is infallable. If you want a DUI lawyer who believes passionately in changing the law not so that the guilty can go free, but that the system work fairly for all I am your man. If this article raises any questions, I can be reached at (937) 318-1DUI or 1-888-ROWLAND.
Lancelot: This moment! Is there some wrong I can right, some peril I can face, some quest I can undertake?
- Ohio OVI: Why file a motion to suppress? (daytondui.com)
- How to Hire a Dayton DUI Defense Attorney (daytondui.com)
- State v. Vega, shackling Ohioans for over 25 years! (daytondui.com)