Court Cannot Stop Questions on Administration of Field Sobriety Testing
January 20, 2008
At the trial in the case of State v. Dean, 2007 Ohio App. LEXIS 6093 (December 24, 2007) Portage Co. App. No. 2007-P-0025, the prosecutor, on numerous occasions, objected to the questions defense counsel asked the arresting officer on cross-examination relating to his training of current National Highway Traffic and Saftey Administration (NHTSA) standards and whether an officer should ask any questions before performing the field sobriety tests.
The trial court sustained the objections, indicating the questions related to the issue of substantial compliance. Moreover, the trial court prohibited Dean’s counsel from asking any questions on cross-examination as to whether the field sobriety tests were done in substantial compliance with NHTSA guidelines for the administration of such tests. In fact, the trial court refused to permit the defense any cross-examination of the arresting officer relating to the accuracy of the testing process.
In rendering its decision, the trial court stated it relied upon Defiance v. Kretz (1991), 60 Ohio St.3d 1, 573 N.E.2d 32.
In citing Kretz, the Second Appellate District has held, “[a] Crim.R. 12(C)(3) motion to suppress evidence is the proper vehicle to challenge the admissibility of evidence to prove an OMVI charge on a claim that it was not procured pursuant to applicable standards or regulations.” State v. Murray, 2d Dist. No. 2002-CA-10, 2002 Ohio 4809, at P10, citing Defiance v. Kretz, at 5.
But Ohio’s Second District Court of Appeals held that in trying to question the arresting officer in the manner described above, Dean was not challenging the admissibility of the evidence at trial — he was challenging the reliability of the evidence. Thus the Court agreed with Dean that the trial court’s limitation of cross-examination in this respect was an abuse of discretion.
