Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions. See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007). In order for the tests to be admissible, the State must demonstrate:
- By clear and convincing evidence.
- The Officer administered the tests in substantial compliance.
- The testing standards for any reliable, credible, and generally accepted test.
- Including, but not limited to, the standards set by NHTSA.
The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial. Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied. If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual.
In my practice we have seen a trend to manipulating the “substantial compliance” standard into a de facto prejudice standard. The burden is being subtly shifted to the defendant to demonstrate that he or she was somehow prejudiced by the officer’s failure to comply with the NHTSA standards. For example; if the officer does not articulate that he advised the suspect not to raise his or her arms, the Court says that he substantially complied by merely mentioning that he was trained in NHTSA protocols. If, however, the defense points out that the officer did not give the proper instruction and still scored the test in a way negative to the defendant, the court may consider excluding some portion or all of the test. Case law can be helpful on this point.
In State v. Clay, 34 Ohio St. 2d 250, 298 N.E.2d 137 (1973) the court ruled, “[h]owever, if by cross examination or otherwise, the defense places such compliance at issue, it then is incumbent upon the State, in order to maintain its burden of proof, to offer the methods and regulations into evidence and prove compliance.” Some courts may try to take Judicial Notice of the manual (See Evid. R 201) when no manual was introduced. In State v. Wells 2005-Ohio-5008 (Ohio Ct. App. 2d Dist., Montgomery County) held that the court cannot assume judicial notice when the record does not demonstrate a request for judicial notice or a reference to the manual by the trial court.
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights, Beavercreek, Centerville 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.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.
- DUI and the Standardized Field Sobriety Tests – An Introduction (daytondui.com)
- Standardization Vital to Validity of Field Tests (daytondui.com)
- Bloodshot and Glassy Eyes Are Not Clues of Impairment (daytondui.com)
- Standardized Field Sobriety Tests & Marijuana (daytondui.com)
- Reckless Operation in Ohio (daytondui.com)
- Ohio DUI Law: Another Jurisdiction Dumps the Intoxilyzer 8000 (daytondui.com)
- Reasonable and Articulable Suspicion (daytondui.com)
- Fairborn DUI Law: How To Find Case Information In The Fairborn Municipal Court (daytondui.com)
- Standardized Field Sobriety Tests: The One Leg Stand Test (daytondui.com)
- Enon Mayor’s Court (daytondui.com)
- Ohio DUI Law Update: Appellate Court Upholds Intoxilyzer 8000 (daytondui.com)