Driver Pulled Over for Suspected OVI – Agrees to HGN Eye Test
An officer began following a vehicle after seeing it drive over the center line. After seeing the car drive over the center line a second time, the officer pulled the car over.
After pulling the driver over, the officer determined that the driver’s license was suspended. He also testified that he smelled a strong odor of alcohol and that the driver glassy, bloodshot eyes.
The driver agreed to perform the HGN (horizontal gaze and nystagmus) test – otherwise known as the eye test. The HGN is one of the standard field sobriety tests used by officers to determine impairment. During the test, the officer asks the suspect to follow a pen with his eyes, during with time the officer looks for the involuntary jerking of the eyes as to the eyes gaze towards the side.
The defendant refused the One-Leg Stand, Walk and Turn and a Portable Breath Test.
The driver was arrested and cited with (1) Left of Center, (2) Driving Under OVI Suspension; and (3) OVI.
Sometime after his arrest, he was read his Miranda rights.
He pled not guilty and moved to suppress the HGN test, and any statements made by the defendant prior to being read his rights.
The Defendant’s Pre-Miranda Statements
After an evidentiary hearing, the trial court found that all statements made by the defendant after his arrest but before being read his Miranda rights should be excluded from evidence.
The HGN Test
The defense also argued that the HGN test was not administered in substantial compliance with the standards set by the National Highway Traffic Safety Administration (NHSTA).
Under Ohio law, evidence and testimony regarding the results of a field sobriety test may be presented in court “if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration [.]”
As to HGN tests, the Ohio Supreme Court has held that test results are admissible if (1) the proper foundation is laid at the administering officer’s training and ability to administer the test, and (2) the proper foundation is laid as to the actual technique used by the officer in administering the test.
Once the issue of substantial compliance is raised in a motion to suppress, the burden shifts to the state to prove by clear and convincing evidence that its officer substantially complied with NHTSA field sobriety test standards.
The Suppression Hearing: The Officer’s Training & Administration of HGN Test
At the suppression hearing, the officer was asked about his training on the NHSTA manual and his administration of the test in this case.
The officer testified that he checked for HGN (horizontal gaze and nystagmus), which is the involuntary jerking of the eyes as to the eyes gaze towards the side.
When asked how he conducts the HGN test, the officer testified that he looked for three clues in each eye:
(1) smooth pursuit (which he said was detected),
(2) distinct and sustained nystagmus at maximum deviation (which he said was present in both eyes), and
(3) the onset of nystagmus prior to 45 degree angle. (which he said he did not observe). Therefore, he observed four out of six clues in his eyes.
Although the officer testified about the clues he looked for, he did not testify about what is required by the NHSTA Manual, or whether he followed the Manual when administering the test.
Moreover, the prosecutor asked very few questions about how the field sobriety test was performed and failed to introduce the NHSTA Manual into evidence.
Finally, at no point did the officer provide testimony from which the trial court could find that he substantially complied with the NHSTA Manual.
The State Failed to Establish Compliance with the NHSTA Manual
Although the officer testified that he received training on the NHTSA manual, he did not testify that he actually performed the HGN test in the manner in which he was trained.
Because the state failed to meet its burden to show that the officer “performed the HGN in substantial compliance with NHTSA manual,” the HGN test was excluded from evidence.
Thus, the case was remanded and the prosecution must proceed with trial with no chemical evidence, no pre-Miranda statements, and no field sobriety tests in evidence.