The Admissibility of Non-Scientific Field Sobriety Tests

Anyone reading this blog is acquainted with the three scientifically accepted field sobriety tests by NHSTA - Horizontal Gaze Nystagmus, walk and turn and one legged stand tests. As previously discussed, Ohio Revised Code O.R.C. 4511.19(D)(4)(b) requires officers to substantially comply with the standards required of NHTSA (or other recognized protocol) before they can be used a basis for arresting a person for OVI.

But, assuming these standards are not used and the court suppresses the results of these tests can the officers observations be used in the prosecution for OVI. Based upon Ohio jurisprudence, the answer is yes.

A recent Eighth Appellate District case demonstrates this issue. In the case, Village of Brooklyn, Heights v. Yee, 2009 Ohio 4552, the driver was stopped after the officer observed her cross the center line three times. After the stop, the officer conducted three tests - the finger to nose test, the alphabet test, and the finger count test. The driver refused to submit to a walk and turn test or a one legged stand test claiming she was injured in a motorcycle test. Based upon the officer’s observations, Yee was arrested and charged with operating a vehicle under the influence.

In a pre-trial motion, the Yee argued that Ohio only recognizes three standardized field sobriety tests, namely: the Horizontal Gaze Nystagmus Test (HGN), the One-Leg Stand, and the Walk and Turn. Thus, the tests administered by the officer were inadmissible. (It is important to note that the opinion is not clear whether the defendant was asking to suppress the results only or the observations of the officer. But, we can only assume the defendant was seeking to suppress the results AND the officer’s observations)

Nonetheless, the court held that an officer's observations regarding a defendant's performance on nonscientific field sobriety tests is admissible as lay evidence of intoxication. The court quoted State v. Schmitt, 101 Ohio St.3d 79, 2004 Ohio 37, 801 N.E.2d 446 in stating, "[t]he manner in which a defendant performs these tests may easily reveal to the average lay person whether the individual is intoxicated...[w]e see no reason to treat an officer's testimony regarding the defendant's performance on a nonscientific field sobriety test any differently from his testimony addressing other indicia of intoxication, such as slurred speech, bloodshot eyes, and odor of alcohol."

Therefore, while the court fails to make clear whether the results were admissible, it is obvious an officer can testify as to his observations. Of course, a well trained attorney fully versed on NHTSA standards and the reasoning behind NHTSA’s rejection of the FST’s as used by the officer in the Yee case will properly cross-examine the officer regarding these disparities.