holding that the officer had probable cause to arrest defendant for driving under the influence where the officer observed erratic driving, that defendant's eyes were red and glassy, her breath smelled of alcohol, and she admitted to consuming three beers
How later courts described this case
- holding that the officer had probable cause to arrest defendant for driving under the influence where the officer observed erratic driving, that defendant's eyes were red and glassy, her breath smelled of alcohol, and she admitted to consuming three beers
- finding that erratic driving, red, glassy eyes, the smell of alcohol on one's breath, and an admission that one had consumed some alcohol were facts sufficient to support a finding of probable cause to arrest for driving under the influence
- holding that an officer’s observation of a defendant’s erratic driving, bloodshot and glassy eyes, that she smelled of alcohol, and her admission that she had been drinking “amply supports * * * [a] decision to place [her] under arrest[ ]”
- stating that "probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect's poor performance on one or more of" the field sobriety tests
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in State v. Boczar
732 N.E.2d 952 (2000) superseded by statute on other grounds as recognized in State v. Boczar, 113 Ohio St.3d 148
Superseded on other grounds by State v. Schmitt, 101 Ohio St. 3d 79 (2004)
89 Ohio St.3d 421, 427 , superseded on other grounds, State v. Schmitt, 101 Ohio St.3d 79
Disagreed with by State v. Marcinko, Unpublished Decision (3-2-2007), 2007 Ohio 1166 (2007)
Id. For these same reasons, we disagree with appellant that the officer's failure to conduct the tests on a level surface or the allegedly strong winds requires the conclusion that the tests did not substantially comply with NHTSA.
The opinion
Lundberg Stratton, J.,
concurring in part and dissenting in part. I concur with the majority in that the filing of a motion before an additional charge is brought does not toll the speedy-trial provisions for that charge under R.C. 2945.72(E). Prosecutors should refile applicable motions or require defendant’s counsel to refile their motions if the motions also apply to the new charge in order to extend speedy-trial provisions to those later charges.
However, I disagree with the majority’s conclusion that field sobriety tests require strict compliance. Field sobriety tests are used by arresting officers to assist in determining whether probable cause exists to arrest the driver for driving under the influence of drugs or alcohol. Field sobriety tests are not constitutionally required, nor are they mandated by statute. They are not even required by the Department of Health or any traffic regulation. They are merely procedures established by the National Highway Traffic Safety Administration (“NHTSA”). As such, they are only evidentiary tools.
In 1986, this court examined the level of compliance required in administering regulations concerning storage temperature of urine samples taken from suspected impaired drivers. This court held that “absent a showing of prejudice to a defendant, the results of a urine-alcohol test administered in substantial compliance with Ohio Adm.Code 3701-53-05 are admissible in a prosecution under R.C. 4511.19.” State v. Plummer (1986), 22 Ohio St.3d 292 , 22 OBR 461, 490 N.E.2d 902 , syllabus. Because the court required only substantial compliance, rather *430 than strict compliance, for those regulations, the evidentiary value of the item decreased as substantial compliance decreased. But even at a substantial-compliance level, rather than a strict-compliance level, the test retained strong evidentiary value.
Similarly here, substantial compliance affects the evidentiary value of the field sobriety tests. But substantial compliance should not result in the tests’ exclusion. If Plummer only requires substantial compliance with the Ohio Administrative Code for the admissibility of chemical test readings for a strict-liability statute, I would find that only substantial compliance should be required for administering the field sobriety tests in question.
The majority notes that according to the NHTSA, “[i]f any one of the standardized field sobriety test elements is changed,-the validity is compromised.” National Highway Traffic Safety Adm., U.S. Dept, of Transp., HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), at VIII-3. Again, this potential compromise in validity can be challenged by the defense on the basis of reliability. A trial court can conduct a pretrial hearing on whether the tests are sufficiently reliable to be admissible, just as a trial judge conducts similar hearings on other evidentiary issues. Even if the trial judge finds that there was substantial compliance with the field sobriety tests so as to make these tests admissible, defense counsel can still attack the tests’ reliability as evidence at trial, depending on the degree of compliance. The NHTSA testing only confirms that the better the compliance, the better the reliability.
The majority highlights Plummer’s observation that strict compliance is “not always realistically or humanly possible” regarding urine test regulations. • Id., 22 Ohio St.3d at 294 , 22 OBR at 463, 490 N.E.2d at 905 . However, field sobriety tests are often administered in the dark, on icy roads, on gravel, during wind and rain. Law enforcement officers do not have the ability to select the ideal environment. Thus, so too with field sobriety tests, I believe that strict compliance is not always realistically or humanly possible.
I fear that this ruling will substantially hamper the effectiveness of law enforcement officers in their ability to ascertain probable cause for OMVI arrests. Defense counsel can now attack any minor deviation from the field sobriety tests and seek exclusion of the tests. At a time when more tools are needed in the effort to combat drunk driving, we have greatly reduced the effectiveness of one of those tools, field sobriety tests.
■ I believe that strict compliance is neither constitutionally nor statutorily mandated, and certainly not mandated by any evidentiary rules. Therefore, I respectfully concur in the judgment, but dissent in part and would find that *431 substantial compliance, not strict compliance, is the appropriate standard for the admissibility of field sobriety tests.
Cook, J., concurs in the foregoing opinion.