When Can I be Asked to Take Field Sobriety Tests?

When a motorist is stopped and the officer is suspicious of alcohol use, the suspect is normally asked to vacate the vehicle and asked to perform tests to determine physical dexterity and metal awareness. These tests are called field sobriety tests. They normally consist of a horizontal gaze nystagmus test, a “walk-and turn” test, and a “one-legged” test. If the officer observes a certain number of “clues” the officer then may determine there is probable cause to arrest the suspect for OVI.

But many of my clients want to know what level of evidence is necessary for the officer to demand these tests. In other words, when they are stopped for some underlying traffic violation, what needs to be observed and how certain must the officer be before they can demand these tests?

Recently, the Fifth District Court of Appeal, Fairfield County, wrote an excellent opinion on the subject. In the case, State v. Strope, the Defendant was stopped for a headlight violation. While addressing the Defendant, the officer smelled a strong odor of alcohol on the Defendant’s person and observed his eyes were red and glassy. The officer asked the Defendant to vacate the vehicle and perform field sobriety tests. After observing sufficient clues, the officer arrested the Defendant for OVI. Prior to trial the Defendant filed a Motion to Suppress, arguing, in part, that the officer “...lacked reasonable suspicion to conduct field sobriety testing.”

In its opinion, the court stated,

“It is well-established that an officer may not request a motorist to perform field sobriety tests unless that request is independently justified by reasonable suspicion based upon articulable facts that the motorist is intoxicated... Reasonable suspicion is something more than an inchoate or unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold.”

The court went on to say:

"Where a non-investigatory stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication, such as an admission of having consumed alcohol, reasonable suspicion exists."

The Defendant went on to argue that based upon the above that the officer had insufficient articuable facts to rise to the level of reasonable suspicion. The Defendant cited the case of State v. Spillers. In that case, the court opined:

“...a de minimus traffic violation, slight odor of alcohol and admission to having consumed a couple drinks was insufficient to justify the performance of field sobriety tests.”

The Fifth Appellate District disagreed with the Defendant’s argument stating that in the cited case only a “slight” smell or alcohol was observed while in the present case a “strong” smell was noted.

Based on the above, it appears an officer can ask you to perform field sobriety tests if:

1. The officer first observes a traffic or equipment violation justifying a stop and

2. The officer observes multiple indicators of alcohol use.

Substantial v. Strict Compliance

Recently, in response to the outcry from law enforcement resulting from the Ohio Supreme Court’s decision in State v. Homan, O.R.C. 4511.19(D)(4)(b) was enacted lowering the standard for the admission of field sobriety tests from strict compliance to substantial compliance. Just as the terms imply, “strict” compliance is a much higher standard that “substantial” compliance.

In the Homan case, the Ohio Supreme Court mandated that Ohio law enforcement officers must strictly comply with the standards set forth by the NHTSA standards for the administration of field sobriety tests (FSTs). Due to lobbying by many law enforcement agencies and other anti-DUI advocates, the legislature passed the above-cited statute lowering the standard to substantial compliance.

But, what is the difference between the two? In State v. McNamara, 124 Ohio App. 3d 706 the Ohio Supreme Court stated the appellate court must ... independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” In other words, the determination of whether the officer “substantially” complied with the NHTSA manual should be determined on a case by case basis. Since the statute is relatively new, the jurisprudence interpreting this standard, thus far, is scarce.

An example of this type of analysis is set forth in the recent case of State v. Davis. The case was the typical case wherein the Defendant was charged with DUI after the arresting officer had administered FSTs in the filed, determined that there was probable cause to arrest the Defendant, and the Defendant was ultimately charged with DUI. The Defendant filed his Motion to Suppress claiming the officer failed to substantially comply with the edicts of the NHTSA manual. The lower court determined the officer substantially complied with the NHTSA manual and overruled the motion.

The appellate court sustained the finding of the lower court after independently analyzing the evidence presented in the lower court. The court, in its analysis, stated that if strict compliance was still the standard, it may have determined the case differently, but, since the standard is the lower standard it determined, in this case only, that the substantial compliance standard was met.