One of the areas where a DUI attorney’s experience is most obvious is in the cross-examination of the arresting officer on the issue of the standardized field sobriety tests. The National Highway Traffic and Safety Administration (NHTSA) was tasked with determining which tests, if any, could be correlated with impairment by alcohol. After extensive testing, NHTSA determined that three tests were specific for alcohol intoxication: the HGN (horizontal gaze nystagmus), the walk & turn test and the one leg stand test. This three-test battery are now referred to as the “standardized field sobriety tests.”
If the officer is using the non-standardized field sobriety tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific and legal 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.