Admissibility of the Standardized Field Sobriety Tests – Statutory Rules

JACKSONVILLE, Fla. (March 17, 2009) Lt. j.g. J...

Ohio Revised Code 4511.19(D)(4)(b) sets forth the law on admissibility of the standardized field sobriety tests in Ohio.  It reads, in pertinent part:

(b) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the whole blood, blood serum or plasma, breath, or urine, if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown 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 field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply:

(i) The officer may testify concerning the results of the field sobriety test so administered.

(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding.

(iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate.

Thus, the State must establish by (1) clear and convincing evidence (2) that the officer administered the test in substantial compliance (3) with the testing standards for any reliable, credible, and generally accepted tests (4) in effect at the time the tests were administered (5) including, but not limited to, the standards set by the National Highway Traffic Safety Administration.  Since the adoption of this standard and its acceptance by the Ohio Supreme Court, DUI attorneys have been fighting to define the parameters of what it means to be in substantial compliance with the standards.  See State v. Boczar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 155 (2007), upholding the constitutionality of R.C. 4511.19(D)(4)(b).  Such determinations are made on a case-by-case basis. State v. Robinson, 160 Ohio App.3d 802, 2005-Ohio-2280, 828 N.E.2d 1050 (Ohio App. 5th District Fairfield County 2005), appeal not allowed, 106 Ohio St. 3d 1544, 2005-Ohio-5343, 835 N.E.2d 726, abrogated on other grounds by State v. Boczar Id.; see also Brookpark v. Key, 2008-Ohio-1811 (Ohio Ct. App. 8th Dist. Cuyahoga Cty 2008).

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