State v. Homan, 89 Ohio St.3d 421, R.C. 4511.19(D)(4), and State v. Schmitt, 101 Ohio St.3d 79 piece together when the state can introduce evidence (through testimony and video) concerning the results of standardized field sobriety tests (SFST’s) in any criminal prosecution for OVI. Simply stated, the standard for consideration of the results on the issue of probable cause for arrest or admissibility of the results at trial is “substantial compliance.” Specifically, the state must show by clear and convincing evidence that the officer administered the test(s) in substantial compliance with the testing standards (contained in NHTSA’s DWI Detection and Standardized Field Sobriety Testing Manual) for any reliable, credible, and generally accepted field sobriety tests (the HGN, Walk And Turn and One Leg Stand) that were in effect at the time the tests were administered (currently, the Manual revised in February, 2018). As it relates to trial, upon such a showing the officer may testify concerning the results, and the prosecutor may introduce the results as evidence if the testimony or evidence is otherwise admissible under the Rules of Evidence. If the court admits the testimony or evidence the trier of fact shall give it whatever weight it considers to be appropriate (and a jury instruction should be given which informs the jurors that they determine the weight, and does not invade the province of the jury to be the sole fact finder).
Confusion however, can arise when substantial compliance is not proven but the state wants to elicit testimony as to an officer’s observations regarding (as characterized in Schmitt) “a defendant’s performance on nonscientific field sobriety tests…as lay evidence of intoxication.”
In Schmitt the court noted that the nonscientific field sobriety tests (WAT and OLS) involve simple exercises, and the manner in which a person performs them may reveal to a layperson whether the person is intoxicated. The court stated that it saw no reason to treat an officer’s testimony regarding the person’s performance any differently from his testimony about other indicia of intoxication such as slurred speech, bloodshot eyes and an odor of alcohol. In holding that an officer can testify at trial regarding observations made during a defendant’s performance of nonscientific SFST’s despite a lack of substantial compliance in administering them, the court stated “Unlike the actual test results, which may be tainted, the officer’s testimony is based upon…first hand observation of the defendant’s conduct and appearance.. Moreover, defense counsel will have the opportunity to cross examine the officer to point out any inaccuracies and weaknesses…”
In his dissent in Schmitt, Judge Pfeifer cogently stated: “Labeling an officer’s observations test results and making them inadmissible, (because they were not properly administered) but calling them observations and making them admissible, is inconsistent.” He was absolutely right.
If you challenge the admissibility of evidence of SFST results and such evidence is excluded due to a lack of substantial compliance, make sure to file a motion in limine to exclude any mention of or evidence concerning those tests. The motion should note that any reference to, testimony concerning, or video and audio recording depicting a person performing SFST’s which has a tendency to make “observations” appear to be “test results” will be unfairly prejudicial, mislead jurors, and confuse the issues. At the very least, in such cases words like “procedures”, “test”, “instructions”, “clues”, “fail”, and “results” should never be introduced before a jury through testimony or a recording.