In most OVI cases, drivers submit to field sobriety tests (i.e., walk and turn, eye test, and one leg stand). Where an OVI stops ends in an arrest, the officer in nearly every case reports that the driver “failed” the tests.  But just because a driver “fails” a field sobriety test doesn’t mean there is no hope.  

There are still opportunities to challenge the administration and admissibility of field sobriety tests in OVI cases.  Particularly where the officer improperly instructed or improperly demonstrated the tests (which will most often be apparent on the dash cam video).

In one recent case – Cleveland v. Krivich, 2016-Ohio-3072 – is an example of a case where field sobriety tests were thrown out because the officer improperly instructed the driver on how to do the tests.  Even though the driver “failed” the tests, the officer’s failure to properly instruct meant that the whole case was eventually thrown out in this particular case. 

Driver Pulled Over for No Headlights; Performed Field Sobriety Tests and Was Arrested for OVI

Defendant was stopped by State Highway Patrol after he was seen driving without his headlights. Defendant did not immediately stop for the officer. During the stop, Defendant fumbled with his wallet and struggled to comply with the officer’s demands.

The arresting officer also noted the smell of alcohol, and Defendant refused a breathalyzer test. This prompted the officer to administer three field sobriety tests: the horizontal gaze nystagmus (HGN), the walk-and-turn test, and the one-leg stand.

The officer testified that Defendant failed all three field sobriety tests, and therefore he arrested Defendant for an OVI.

Defendant filed a Motion to Suppress the evidence of the field sobriety tests due to incorrect testing procedures by the arresting officer.  Defendant also argued that the suppression of the field sobriety tests will make his arrest unlawful.

Field Sobriety Tests Inadmissible if Officer Gives Improper Instructions 

Under R.C. 4511.19(D)(4)(b), an officer’s testimony about how a driver did on a field sobriety test is only admissible if the officer complied with the NHTSA testing standards. This compliance must be demonstrated by clear and convincing evidence. The State may demonstrate the NHTSA standards through testimony or by introducing applicable portions of the manual.

In this case, the arresting officer testified that he was not up to date with the most recent version of the NHTSA manual, and he had not been up to date with any version since 2000 when he first became an officer.  He did not know, for example, that bloodshot eyes are no longer a clue of impairment (and have not been since 2009).

Further, all three field tests he administered were administered improperly.

HGN (eye test).  

On the HGN, the officer failed to:

  • Use a proper testing device (the officer said to follow his finger instead of a pen);
  • Move the stimulus (his finger) in the proper manner (moving it from the center outward in 2 to 4 seconds);
  • He did not instruct defendant that he was testing his eyes;
  • He didn’t ask if the defendant wore contacts;
  • He did not know that after 2009, bloodshot eyes are no longer recognized as a cue for intoxication.

Because he did not properly administer the test, the HGN (eye) test was improper and not admissible.

Walk-and-Turn Test.  

On the walk-and-turn, the officer:

  • Instructed the driver to walk nine steps, heel-to-toe, then turn around and walk back, but he did not demonstrate how to complete the turn.

One-Leg Stand.

On the one leg stand test, the officer:

  • Did not time the defendant during the one-leg stand test, and
  • Did not instruct the defendant to keep his hands at his side during this test.

Because the officer did not instruct and demonstrate to the defendant how to walk during this test, the walk-and-turn test was improper and not admissible.

In this case, all three tests were suppressed because the City failed to demonstrate with clear and convincing evidence that the arresting officer complied with the NHSTA standards and the applicable portions of the manual were never introduced.

With field sobriety tests suppressed, does an officer have probable cause to make an OVI arrest?

Potentially.  Even if the sobriety tests are suppressed, an officer may still testify to actions, statements, and other observations made during a stop.  But, an officer must prove that at the moment of arrest he had sufficient information that a reasonable person would suspect the Defendant was driving under the influence based on the totality of facts and circumstances.

In this case, without the field sobriety tests, the court found that the arresting officer lacked probable cause to arrest Defendant for an OVI.  The case, then, was thrown out. 

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