Ohio officers are required to perform all field sobriety tests in compliance with the National Highway Traffic Safety Administration (NHSTA) manual.
The NHSTA manual states that someone more than 50 pounds overweight may have difficulty performing certain field sobriety tests — namely, the one leg stand.
The fact that a defendant is more than 50 pounds overweight, then, could possibly be a defense to failed field sobriety tests at a motion hearing or trial.
One defendant recently raised this issue in Ohio’s First District Court of Appeals in the case of State v. Kaczmarek, 2015-Ohio-3852. Unfortunately, in this case, the court found in favor of State, holding that being overweight is not grounds for suppression of a field sobriety test (the one leg stand).
That is not to say, however, that other Ohio courts of appeals would necessarily agree in the future. Further, being overweight may still be a useful fact at trial to demonstrate that failing the one leg stand test is not evidence of impairment, but rather a symptom of the defendant’s overweight status.
Overweight Driver is Stopped for OVI, Takes Field Sobriety Tests
In this case, the driver was pulled over on I-71 after an Ohio State Highway Patrol trooper detected him going 87 m.p.h. in a 65 m.p.h. zone.
During the stop, the trooper found that the driver gave unusual answers to some preliminary questions, and the officer detected a moderate odor of alcohol.
The trooper asked the driver to perform field sobriety tests, including the horizontal-gaze-nystagmus (“HGN”), the walk-and-turn (“WAT”), and the one-leg-stand (“OLS”) tests. The driver failed all of the tests.
He was arrested for OVI. He later blew a .101 BAC on a breathalyzer.
HGN (Eye Test) Suppressed
The HGN (eye test) was suppressed (kept out of evidence) by the court because it was not conducted in compliance with the NHSTA manual. Specifically, the HGN test was conducted while the trooper’s cruiser lights were in the driver’s line of sight, with the trooper’s pen at incorrect positions, and for an incorrect duration of time.
Walk and Turn and One Leg Stand Upheld
With respect to the “walk and turn” and “one leg stand”, the defendant argued that because he is overweight, the trooper should not have given him the tests.
The defendant argues that the trooper failed to do an appropriate prescreening and that because he was more than 50 pounds overweight, the tests should not have been conducted at all.
One section in the NHTSA Manual concerning the one leg stand test states:
“The original research indicated that certain individuals over 65 years of age, [individuals with] back, leg, or inner ear problems, or people who are overweight by 50 or more pounds had difficulty performing this test.”
Despite this warning, the court in Kaczmarek found that:
“while the statement may be cautionary, there is nothing in the manual that excludes or excuses overweight people from being asked to complete the OLS test * * * Being within 50 pounds of an appropriate weight is not a prerequisite for the administration of the standardized OLS test.”
Thus, the court of appeals found that the walk and turn and one leg stand tests were administered in substantial compliance with the NHTSA manual.
Regardless of this adverse finding, that a defendant is overweight may still be used at trial to explain why a defendant “failed” a test — other than being impaired.
