Substantial Compliance and the Horizontal Gaze Nystagmus Test

The Horizontal Gaze Nystagmus Test (HGN) is one of three tests certified as accurate by the National Highway Traffic and Safety Administration (NHTSA). In the test, the police officer has the subject stand before him with his/her head still and the officer moves a pen or other stimulus back and forth before the subject’s eyes. The officer is looking for jerking (nystagmus) in the eyeballs as they move back and forth. The NHTSA has stated in the manual on how to administer the tests (there are two others, the Walk and Turn Test (WAT) and the One Leg Stand Test (OLS)) that such tests must be given in strict compliance with the directions for administration, or the results will be compromised.

In State v. Homan, the Ohio Supreme Court ruled that strict compliance with the NHTSA standards for administration is necessary for their admission into evidence in order to establish probable cause to arrest without a warrant. But the Ohio Legislature decided that the NHTSA, the designer of the test, didn’t know what it was talking about, and brushed aside the warning about strict compliance and passed a new DUI law which stated that “substantial compliance” was okay and so long as there was substantial compliance with the test, it was reliable enough to come in. The Ohio Legislature didn’t conduct any scientific tests or anything when they trashed the NHTSA, but that’s how junk science works.

Anyways, these days, in order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in substantial compliance, rather than strict compliance, with standardized testing procedures. Strongsville v. Troutman, 8th Dist. No. 88218, 2007 Ohio 1310 at P 22 citing R.C. 4511.19; State v. Schmitt (2004), 101 Ohio St.3d 79, 82, 2004 Ohio 37, 801 N.E.2d 446. Ohio Revised Code Section 4511.19(D)(4)(b) (rather than the rules of evidence or the Ohio Supreme Court) now governs the introduction of the results of field sobriety tests in criminal prosecutions and provides as follows:

In any criminal prosecution… for a violation of division (A) or (B) of this section, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol…or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol…if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and 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, all of the following apply:

(i) The officer may testify concerning the results of the field sobriety test so administered.
(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution…
(iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate. (Emphasis added).

HGN test results are admissible in Ohio without expert testimony so long as the proper foundation has been shown both as to the administering officer’s training and ability to administer the test and as to the actual technique used by the officer in administering the test. State v. Boczar (2007), 113 Ohio St.3d 148 at 153.

Just what consitutes substantial rather than strict compliance is predictably not specified. The Ohio Legislature didn’t want to take a stab at that, and left it to individual trial court judges to define. So those judges took a whack at it.

In State v. Loveridge, Deputy Brian Brown of the Marion County Sheriff’s Department testified as follows regarding how he “substantially complied” with the HGN test:

At the January 19, 2006 suppression hearing, the State presented the testimony of Deputy Brown. Brown testified that he pulled Loveridge over after observing him drive left of center three times. Upon approaching Loveridge’s vehicle, Brown testified that he smelled a light odor of alcoholic beverage and observed that Loveridge’s eyes were glassy. Brown then had Loveridge perform field sobriety tests, starting with the HGN test. Brown testified that he was certified to perform the HGN test and that he was trained in the proper procedures for administering this test. Brown testified that he observed nystagmus in both of Loveridge’s eyes after holding the pen at 12 to 15 inches at maximum deviation for about four seconds. Brown testified that although he sometimes does the horizontal gaze/maximum deviation test twice, he stated that “each case is a little different, but with this case I only did it once.”

Brown also testified that he had Loveridge perform the “45 degree test” but did not recall if he administered the test once or twice. Finally, Brown testified that he administered the “smooth pursuit test” where he watched Loveridge eyes track the tip of a pen and observed nystagmus in both eyes. Brown testified that it takes each eye approximately two seconds to go out and back when following the pen. On cross-examination Brown admitted that he did not repeat the HGN tests twice and may have just done them once.

Additionally, Brown was unfamiliar with the proper procedure which states that an officer shall perform each test twice on each eye and could not recall if he followed that procedure. Brown also could not remember the exact instructions he gave to Loveridge prior to the HGN test and did not recall whether he even gave the proper instructions. When asked if he completed any of the required three steps or stages to check Loveridge’s eyes before administering the HGN test, Brown did not know what Loveridge’s attorney was talking about.

Eventually, Brown admitted that he did not recall if he checked Loveridge’s eyes to see if they were equally dilated or if they followed smoothly before administering the maximum deviation portion of the HGN test. Furthermore, in administering the “smooth pursuit test” Brown admitted that it took him longer than the two seconds specified in the manual to bring the pen out to the left and back to the center.

Ohio’s Third District Court of Appeals held that that because Officer Brown did not do the preliminary tests (of checking for equal pupil size and equal tracking), did not test each eye twice, did not use the proper measures of time and did not know what specific instructions he gave to Loveridge prior to administering the tests, that the HGN tests were not administered in substantial compliance with the NHTSA standardized testing procedures and therefore should have been suppressed.

The Court also held that because the prosecutors did not introduce into evidence the NHTSA’s Field Testing Manual containing the standards for such test, compliance, strict or substantial, could not be determined. The case on this is State v. Loveridge, 2007 Ohio App. LEXIS 4065 (September 4, 2007) Marion Co. App. No. 9-06-46.

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