Columbus OVI/DUI Attorney Blog

Justin's buddy was arrested for O.V.I. (D.U.I.) and called Justin to pick him up at the police station. Being a good friend, Justin drove to the police station. When he arrived, Justin was greeted by an officer who noticed that Justin had glazed eyes, slurred speech, and an odor of alcohol. The officer had Justin get out of the car, and the officer administered field sobriety tests. The officer arrested Justin and charged him with O.V.I. Justin later appealed his O.V.I. conviction, claiming the officer did not have justification to administer field sobriety tests.

The court of appeals decided Justin's case in September of 2011 (State v. Trimble). The court reviewed the law regarding this part of the O.V.I. arrest process, which essentially says that, to administer fieldsobriety tests, an officer must have a reasonable, articulable suspicion that the suspect is under the influence. The court then evaluated Justin's situation using a list of factors from the 1998 case State v. Evans and concluded that the officer was justified in administering field sobriety tests to Justin due to the time of day, Justin's glazed eyes, the odor of alcohol, and Justin's slurred speech. Justin's conviction was upheld.

Justin learned the hard way that it doesn't take much evidence to justify the administration of field sobriety tests. What he probably didn't know, which most people don't, is that he could have refused to perform the field sobriety tests. At least Justin is a good friend: a friend picks you up from jail, but a good friend is in jail with you.

Suddenly, there are flashing lights in your rear-view mirror. 'What did I do?' The officer slowly approaches your window. "Good evening. I noticed you had some trouble staying in your lane back there. I need to see your license, registration, and proof of insurance." The nervousness makes it nearly impossible to get that stupid license out of your wallet. Where is the registration? You finally give the officer the documents. "Just sit tight", he says, "I'll be 'right back."

After what seems like forever, he returns. "I smell the odor of alcohol. I'll need you to get out to make sure you're okay." Your mind races. 'Is that glass of wine I had with dinner going to be a problem?' You find the door handle, open the door, and get out. "Just stand on the spot where I'm shining my flashlight." "I'm going to give you a few field sobriety tests to see if you are under the influence."

'Time out. Can I talk with an attorney first?'

The short answer is 'no'. Keep reading for the longer answer.
The Constitution says we have the right to counsel, and the United States Supreme Court says that right exists at "critical stages" of criminal cases. A critical stage was defined in United States v. Wade as "any stage in the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." Courts have interpreted the phrase "critical stage" to include police interrogations and post-accusation lineups.

Field sobriety tests, however, are not considered "critical stages". Courts in Ohio have repeatedly held that there is no Constitutional right to counsel before taking field sobriety tests: as early as 1999 in State v. Arnold and as recently as 2011 in State v. Davis. Courts have also held that there is no right to counsel when deciding whether to take a breath test, blood test, or urine test because that also is not a "critical stage".

As you do not have the right to talk with a DUI lawyer before the field sobriety tests, your 'time out' isn't going to help much. Is that glass of wine going to be a problem now? A future post will discuss whether you have to take field sobriety tests, whether you should, and what happens if you don't.

Standardized field sobriety tests are administered in nearly every OVI (DUI) case in central Ohio. But what it the standard for admitting the field sobriety tests as evidence in an OVI (DUI) trial? To answer this question, we must look at decisions by the Ohio Supreme Court, legislation by the Ohio General Assembly, and the manual published by the National Highway Traffic and Safety Administration.

What has the Ohio Supreme Court said? In 2000, the Ohio Supreme Court held that, for the results of field sobriety tests to serve as probable cause to justify an arrest, the tests must be administered in strict compliance with standardized testing procedures. State v. Homan. The Court stated, "When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable." In 2004, the Ohio Supreme Court held that, for the results of field sobriety tests to be admissible at trial, the tests must be administered in compliance with standardized testing procedures. State v. Schmitt.

What has the Ohio legislature said? The legislature apparently did not approve of the result in Homan. In 2002, the Ohio General Assembly amended Ohio Revised Code section 4511.19(D). The amended statute provides that, if the prosecution demonstrates by clear and convincing evidence that the tests were administered in substantial compliance with testing standards, then: (1) the officer may testify concerning the results of the tests; (2) the prosecution may introduce the results of the tests; and (3) the Court shall admit such evidence if it is admissible under the Rules of Evidence. R.C. 4511.19(D)(4)(b).

So what is substantial compliance? In 2007, the Ohio Supreme Court held that the substantial compliance standard of R.C. 4511.19(D) does not violate the Ohio Constitution. State v. Boczar. Although the Ohio Supreme Court has not defined substantial compliance in the context of field sobriety tests, that Court did stated that substantial compliance means complying with procedures to the extent that the only errors are de minimus. State v. Burnside (2003), 100 Ohio St.3d 152.

What does the manual say? The manual that contains the standards for administering the tests is "DWI Detection and Standardized Field Sobriety Testing", published by the National Highway Traffic and Safety Administration (NHTSA). On page VIII-19, the manual states: "It is necessary to emphasize this validation (of the tests) applies only when: *The tests are administered in the prescribed standardized manner *The standardized clues are used to assess the suspect's performance *The standardized criteria are employed to interpret that performance. If any one of the standardized field sobriety test elements is changed, the validity is compromised."

How do we synthesize the manual, the legislation, and the decisions? We can determine if the officer substantially complied with testing standards by looking at the language of the NHTSA manual and the language of Burnside. If the officer changes any one element of the field sobriety tests (how the test is administered and how the suspect's performance is interpreted), the validity of the test is compromised. Any error that compromises the validity of the test certainly is no "de minimus".

Why does this matter? If officers do not substantially comply with the standards of the NHTSA manual, the results of the field sobriety tests may not be used for determining probable cause, and the results of the tests may not be admissible in trial. Given that nearly every OVI (DUI) case involves field sobriety tests, the standard of admissibility for standardized tests is very important.