“The notion that an officer may testify and estimate that a person, based on his or her Horizontal Gaze Nystagmus results, will test over the statutory limit a certain percentage of the time is alarming.” This is not the opinion of an OVI defense attorney, but the opinion of the 4th District Court of Appeals in State v. Martin, 2005-Ohio-1732 (Ohio Ct. App. 4th Dist. Pickaway County 2005)(error found to be harmless in light of the other evidence adduced). Therein, the court found it was error for the trial court to permit the arresting officer to testify that four or more clues on an Horizontal Gaze Nystagmus test meant a 77% probability that the subject would have tested over the legal limit, although the officer did not state the results would show the defendant’s exact alcohol concentration. Ohio’s First District Court of Appeals reached a similar conclusion in State v. Grizovic, 177 Ohio App. 3d 161, 2008-Ohio-3162, 894 N.E.2d 100 (Ohio Ct. App. 1st Dist. Hamilton County 2008), appeal not allowed at 120 Ohio St. 3d 1419, 2008-Ohio-6166, 897 N.E.2d 654 (2008). In Grizovic, the Court held that trial testimony as to the statistical probability that a person would have tested over the legal limit based on the number of clues exhibited in any field sobriety test, without expert testimony linking the person’s blood alcohol content to impairment, is highly prejudicial and inadmissible.
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, Springboro, Franklin 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 Twitterupdates 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.