The case of State v. Holzapfel is an example of why even if you submit to the standardized field sobriety tests as part of a DUI/OVI investigation, hiring an attorney is in your best interests. The case began when the officer began following a vehicle after seeing it driver over the center line. After seeing this again, the officer pulled over the vehicle.

After pulling the car over, the officer discovered that the person’s driver’s license was suspended. Moreover, the officer smelled a strong odor of alcohol and believed that the driver had glassy/bloodshot eyes. The driver agreed to perform the horizontal gaze nystagmus (HGN) test, commonly known as the eye test.

The HGN test is one of three standardized field sobriety tests used by law enforcement to determine whether a driver is impaired. During the test, the officer asked the driver to follow a pen with his eyes. While performing the test, the officer looked to determine if an involuntary jerking of the eyes occurred when the eyes look towards the side.

After failing this test, the driver refused the One Leg Stand and Walk and Turn tests, and refused the Portable Breath Test. The driver was arrested and cited with driving left of center, driving under DUI/OVI suspension, and DUI/OVI. He pled not guilty and moved to suppress the HGN test.

Substantial Compliance with NHTSA Field Sobriety Test Procedures

The defense argued that the HGN test was not administered in substantial compliance with the standards set forth by the National Highway Traffic Safety Administration (NHTSA). 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.”

For HGN tests, the Ohio Supreme Court has held that the test results are admissible so long as the proper foundation is laid as to the administering officer’s training and ability to administer the test, and 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 by the defense, the burden shifts to the state to prove by clear and convincing evidence that the officer substantially complied with the NHTSA standards.

The HGN Suppression Hearing

During the suppression hearing, the officer was questioned about his training on the NHTSA manual and his administration of the HGN test. The officer testified that he checked for HGN, which is the involuntary jerking of the eyes as the eyes gaze towards the side. When questioned about how he conducts the HGN test, the officer testified that he looked for three clues in each eye:

1. Smooth pursuit (which he testified was detected);
2. Distinct and sustained nystagmus at maximum deviation (which he testified was present in both eyes); and
3. The onset of nystagmus prior to 45 degrees (which the officer testified he did not observe).

The officer testified that he observed four out of six clues. However, the officer did not testify as to what is required by the NHTSA manual, or whether he followed the manual when administering the test. Additionally, the prosecutor asked only a few questions about how the field sobriety test was performed and failed to introduce the NHTSA manual into evidence. Finally, the officer did not provide testimony from which the court could find that he substantially complied with the NHTSA manual.

Therefore, even though the officer testified that he received training on the NHTSA manual, he did not testify that he performed the HGN test in the manner specified in the manual. Since the prosecution failed to demonstrate that the officer performed the HGN test in substantial compliance with the NHTSA manual, the HGN test was excluded from evidence.

Columbus and Delaware, Ohio DUI/OVI Attorney

If you have been arrested for DUI/OVI in Columbus or Delaware, Ohio, contact Johnson Legal, LLC to discuss your case. Attorney David Johnson is an experienced DUI/OVI attorney who will speak with you about the facts of your case and vigorously defend you and your ability to drive. Don’t face the serious consequences and repercussions of a DUI/OVI charge alone. Call Johnson Legal, LLC at (614) 987-0192.