SFSTs and Strict Compliance:
Ohio v. Homan Case Law Summary
by Marcia Cunningham, Senior Attorney National Traffic Law Center, American Prosecutors Research Institute
The Ohio Supreme Court recently held in Ohio v. Homan, 732 N.E.2d 952 (Ohio 2000), that Standardized Field Sobriety Tests [SFSTs] conducted in a manner that departs from the procedures established by the National Highway Traffic Safety Administration [NHTSA] “are inherently unreliable”. Id. at 955. In a 4 to 2 decision dated August 16, 2000, the court determined that the administration of SFSTs, including the one-leg stand and walk-and-turn tests, must be performed in strict compliance with the procedures established by NHTSA. Id. at 957. See generally NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION, PUB. NO. HS 178 R2/00, DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL (2000) [NHTSA SFST STUDENT MANUAL]. The court concluded that because the arresting officer admitted to not having strictly complied with established police procedure during the administration of the Horizontal Gaze Nystagmus [HGN] and walk-and-turn tests, the results of the SFSTs must be excluded. Homan, 732 N.E.2d at 957.
The Ohio Supreme Court attempted to distinguish Homan from prior court rulings that allow for substantial compliance in other testing areas. In Ohio v. Plummer, 490 N.E.2d 902 (Ohio 1986), for example, the court held that there need only be substantial compliance with an administrative regulation requiring the refrigeration of urine specimens when not in transit or under examination. The court noted that “strict compliance with this regulation would not always be realistic or humanly possible.” Homan, 732 N.E.2d at 957 (quoting Plummer, 490 N.E.2d at 905). In contrast, the Homan court found “it is well established that in field sobriety testing even minor deviations from the standardized procedures can severely bias the results.” Id. In reaching this conclusion, the court relied on the NHTSA SFST STUDENT MANUAL, which reads “if any one of the standardized field sobriety test elements is changed, the validity is compromised.” Id. at 956. The court appeared to ignore, however, the preface to the student manual, which states:
The procedures outlined in this manual describe how Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make SFSTs invalid.
NHTSA SFST Student Manual (2000).
As previously noted, the Homan court was not unanimous in its decision. Although the dissent did not cite the manual preface, it clearly adopted the same rationale. Homan, 732 N.E.2d at 960 (Lundberg, J., dissenting). The dissent argued that any deviation from NHTSA’s procedures should go to the weight of the evidence, not its admissibility. Id. at 959. It further stated that by permitting a substantial compliance requirement for SFSTs, any potential compromise in the validity of the test could still be challenged by the defense, thus allowing for an attack on the weight to be given the evidence without the need to summarily exclude it. Id. at 960.
Other states have examined the issues raised in Homan. One of the leading cases is Florida v. Meador, 674 So.2d 826 (Fla. Dist. Ct. App. 1996). In Meador, the State of Florida appealed a pretrial order excluding the results of field sobriety tests. Id. at 827. The trial court excluded those results after finding that the officer had not strictly complied with NHTSA’s guidelines. Id. The threshold question on appeal was “whether testimony concerning the results of field sobriety tests is to be treated as lay observations of intoxication or as scientific evidence of impairment.” Id. at 831. Excluding the HGN test and addressing only the psychomotor tests, the court held:
The mere fact that the NHTSA studies attempted to quantify the reliability of the field sobriety tests in predicting unlawful BAC’s does not convert all of the observations of a person’s performance into scientific evidence. The police officer’s observations of the field sobriety exercises, other than the HGN test, should be placed in the same category as other commonly understood signs of impairment, such as glassy or bloodshot eyes, slurred speech, staggering, flushed face, labile emotions, odor of alcohol or driving patterns . . . . As long as the testimony of the officers is restricted to lay observations, we agree with the state that . . . the probative value of the psychomotor testing is not outweighed by the danger of unfair prejudice.
Id. at 831.
In reaching this conclusion, the Florida court took notice of decisions in two other states. In Pennsylvania v. Ragan, 652 A.2d 925 (Pa. Super. Ct. 1995), appeal denied, 664 A.2d 540 (Pa. 1995), the Pennsylvania Superior Court held that the one-leg stand, finger-to-nose and walking-in-a-straight-line tests involve observations within the common experience of the ordinary citizen, and thus are admissible as non-scientific evidence of intoxication. Meador, 674 So.2d at 831 (citing Ragan, 652 A.2d at 928). Similarly, in Illinois v. Sides, 556 N.E.2d 778 (Ill. App. Ct. 1990), the Illinois Court of Appeals stated:
In assessing the defendant’s mental and physical faculties at a time relevant to the charge that he was driving an automobile while under the influence of alcohol, it is entirely appropriate for the jury to consider the defendant’s ability to perform the simple physical tasks which comprise the field sobriety tests. The jury’s inference that a defendant who had difficulty performing some of these tasks may have been similarly impaired in his ability to think and act with ordinary care when in operation of an automobile is entirely justified and one which the law permits the jury to draw. Certainly in our modern society, a juror’s common observations and experiences in life would include not only the driving of an automobile, but a familiarity with the degree of physical and mental acuity required to do so.
Id. at 779.
Wisconsin is another state with court decisions in agreement with the above. In Wisconsin v. Curran, 559 N.W.2d 925 (Wis. Ct. App. 1996), the defendant argued that a finger dexterity test was not scientifically valid and that the walk-and-turn and one-leg stand tests were administered in a manner that deviated from the NHTSA SFST STUDENT MANUAL and were thus invalid. In rejecting the defendant’s claim, the court held that just because the manual referred only to a specific three-test battery consisting of the walk-and-turn test, one-leg stand test, and HGN test, it does not mean other combinations of such tests are not reliable. The court further stated, “it is not the province of this court to determine what weight to give evidence.” Id.
Additionally, in Wisconsin v. Drew, 577 N.W.2d 388 (Wis. Ct. App. 1998), the Wisconsin Court of Appeals rejected the defendant’s claim that the field sobriety tests were not sufficiently reliable. Noting that the defendant proffered no part of the NHTSA SFST STUDENT MANUAL as evidence, the court stated:
Perhaps it is true that the NHTSA manual describes a three test battery that is claimed to be highly reliable in identifying persons whose blood-alcohol concentration are over .10 when administered in a standardized manner and assessed on the basis of standardized criteria. This does not necessarily mean, however, that other combinations of sobriety tests not described in the manual are not reliable as well in assessing whether a person’s ability to operate a motor vehicle is impaired by alcohol . . . . We are unaware of any legal authority in Wisconsin for the proposition that the NHTSA described tests, and only those tests, may be relied upon by law enforcement . . . .
Id. at 390. See also Dunn v. Woodman, 604 N.W.2d 35 (Wis. Ct. App. 1999)(holding that a police officer’s lay observations formed during administration of field sobriety tests may be used for probable cause to arrest); Wautoma v. Wehe, 600 N.W.2d 56 (Wis. Ct. App. 1999)(holding that expert testimony is not helpful in determining validity and reliability of field sobriety tests since lay observations of police officers are admissible).
In Tennessee v. Williams, No. 01C01-9707-CR-00309, 1998 Tenn. Crim. App. LEXIS 1189 (Tenn. Crim. App. Nov. 20, 1998), the officer who administered the SFSTs conceded that the heel-to-toe test is preferably performed on a flat surface, though in the instant case the test was performed in a valley, “midway between two hills”. Id. Additionally, the officer admitted that there was no fog line at that point in the road to serve as a straight line for the performance of the test. Id. Nevertheless, the appellate court refused to rule that the trial court’s failure to suppress the results was error, stating that “[t]he conditions under which the tests were performed relate to the weight to be afforded the test results, not the admissibility of the results.” Id at *8.
Georgia has also held that the results of field sobriety tests are admissible despite evidence that the tests were not administered in strict compliance with NHTSA’s procedures. In Georgia v. Pastorini, 474 S.E.2d 122 (Ga. Ct. App. 1996), the Georgia Court of Appeals held that testimony indicating the officer had failed to administer the tests in accordance with his training “affects only the weight to be given the tests . . . [C]redibility of evidence such as this should be left for jury determination.” Id. See also Cann-Hanson v. Georgia, 478 S.E.2d 460 (Ga. Ct. App. 1996)(evidence that the officer did not fully comply with NHTSA’s procedures did not destroy the probative value of the tests).
A subsequent Georgia case takes this rationale even further. In Cantwell v. Georgia, 497 S.E.2d 609 (Ga. Ct. App. 1998), the appellate court adopted the State’s view that the officer who administered the field sobriety tests testified as a lay witness. Prior to trial, the State made a motion in limine to exclude any mention of NHTSA SFST training received by the arresting officer. Id. at 610. Instead, the State asserted that the officer would testify as a lay witness and only as to his observations of the defendant as he performed the tests. Id. The State further asserted that the officer “would not testify as to any ‘point system’ or whether the defendant passed or failed the tests.” Id. The trial court granted the State’s motion and defendant appealed, arguing that he was prevented from questioning the officer about his training and from calling an expert witness regarding the proper methods of administering and evaluating the tests. Id. The Georgia Court of Appeals upheld the conviction, stating:
[I]f the State chooses to have the officer testify as a lay witness and describe the actions of the defendant in performing simple exercises such as the “leg lift” and “walk and turn” without referring to any “points” system or using the words “pass” or “fail”, cross-examination on NHTSA procedures is irrelevant, regardless of whether the officer is trained in them or not.
Id.
In another case, Hawkins v. Georgia, 476 S.E.2d 803 (Ga. Ct. App. 1996), the Georgia Court of Appeals explained:
With regard to the “ABCs,” “walk and turn,” and “leg lift” field sobriety tests given appellant, the word “tests” is a misnomer; these are physical dexterity exercises that common sense, common experience, and the “law of nature” show are performed less well after drinking alcohol. The screening of these gross motor skills is hardly the type of “scientific principle or technique” to which Harper [Harper v. State, 292 S.E.2d 389 (Ga. 1982)] referred, and this Court will not hold these physical manifestations of impairment, which could be as obvious to the layperson as to the expert, to such a standard of admissibility.
Id. at 807.
Texas applied the same rationale in Cloud v. Texas, No. 03-99-00165-CR, 2000 Tex. App. LEXIS 3518 (Tex. Crim. App. May 25, 2000). In rejecting defendant’s argument that he should be afforded a pretrial hearing on the scientific reliability of the field sobriety tests, the Texas Court of Criminal Appeals stated:
Unlike the horizontal gaze nystagmus (“HGN”), these tests—the walk-and-turn, alphabet recital, and finger dexterity tests—are not based on any novel scientific theory. The State introduced the testimony to show impairment of physical and mental faculties. These [field sobriety tests] involve observation of directed, basic tasks and are barely distinguishable from lay observation of undirected behavior. There was no reason to preliminarily inquire into the scientific basis of the tests outside the presence of the jury.
Id. at *4.
The Hawaii Supreme Court made a similar determination in Hawaii v. Toyomura, 904 P.2d 893 (Haw. 1995). Over defense objections, the trial court allowed the arresting officer to give an opinion as to defendant’s state of sobriety based upon, among other things, defendant’s performance of field sobriety tests. Id. at 899. In overruling the objection, the trial court stated, “I think any . . . lay person can have an opinion regarding sobriety.” Id. While reaffirming the holding in Hawaii v. Nishi, 852 P.2d 476 (Haw. Ct. App. 1993) that a police officer may not give an expert opinion about whether a person is intoxicated based on field sobriety tests, the court held that an officer may still give an opinion from a lay person’s point of view. Toyomura, 904 P.2d at 911; but cf. Hawaii v. Ito, 978 P.2d 191 (Haw. Ct. App. 1999) (holding no probable cause where the arrest was based solely upon the results of improperly administered Horizontal Gaze Nystagmus).
In Smith v. Indiana, No. 07A01-0007-CR-245, 2001 Ind. App. LEXIS 969 (Ind. Ct. App. June 13, 2001), the Indiana Court of Appeals similarly concluded that an investigating officer’s training and experience are the only evidentiary foundation needed for admission of field sobriety tests, holding that these tests do not involve any complex processes or principles. The testimony of the officer is merely a report of the officer’s observations as to the defendant’s ability to perform simple tasks. However, footnote one left open the question of the proper foundation for the admissibility of Horizontal Gaze Nystagmus, which was not decided by this opinion.
Finally, in Smith v. Wyoming, 11 P.3d 931 (2000), the defendant contended that a police officer could only testify as to field sobriety test results if the tests were conducted in strict compliance with the procedures established by NHTSA. The court rejected this argument:
Considering that there may be other means of law enforcement training available now and in the future, for the purpose of establishing probable cause, a law enforcement officer may testify to the results of field sobriety tests (including the horizontal gaze nystagmus test) if it is shown that the officer has been adequately trained in the administration and assessment of those field sobriety tests and conducted them in substantial accordance with that training . . . [P]urported deficiencies in the administration of the sobriety tests go to the weight accorded the evidence and not to its admissibility.
Id. at 935.
CONCLUSION
The Ohio Supreme Court is the only court to have held that deviations from NHTSA’s procedures in the administration of SFSTs render test results inadmissible. The appellate courts of nine other states have reviewed the admissibility of both SFSTs and other physical dexterity tests and have held that deviations in the administration of the tests should not result in the suppression of test results. This common sense approach embraces the idea that although certain field sobriety tests like HGN may be scientific in nature, not all such tests fall into that realm. As these courts have recognized, many commonly used field sobriety tests, including the walk-and-turn and the one-leg stand, are simple dexterity tests that can be interpreted by the fact finder through the use of common sense and experience. Thus, as a majority of courts have ruled, a deviation from NHTSA’s procedures in the administration of SFSTs should go the weight of the evidence, not its admissibility
Updated: January 8, 2002
|
