The Demise of Homan and the Rise of Junk Science

In October of 2000, the Ohio Supreme Court ruled in State v. Homan that the battery of tests more commonly known as Standardized Field Sobriety Tests were inherently unreliable predictors of intoxication unless they were given in strict compliance with the NHTSA guidelines. As such, the Ohio Supreme Court ruled that the results of tests not conducted in strict compliance with the NHTSA guidelines must be supressed from the evidence in any case.

This was an extremely controversial ruling amongst police officers, prosecutors, and Mothers Against Drunk Drivers. But the Ohio Supreme Court wasn’t going out on much of a limb. The NHTSA’s own manual which sets up the three standardized field sobriety tests, the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test plainly states that any deviation, no matter how slight from the instructions in the manual compromises the integrity of the tests.

But the Ohio Legislature wasn’t going to sit back and allow the Ohio Supreme Court to determine what evidence it would and wouldn’t consider. They passed a law which said that standardized field sobriety testing done in substantial (rather than strict) compliance was admissible at trial.

Back in the old days, a judge would have snorted something about separation of powers and how legislatures routinely prove that any goddamned wallpaper hanger can be a legislator and found the law unconstitutional. But in today’s era of shy judges, much of the power of the judicial branch was simply handed over to the Legislature in the Ohio Supreme Court’s recent ruling in State of Ohio v. Bocsar.

In that case, the Ohio Supreme Court found that while courts of Ohio did have the power to fashion rules of evidence, that the rule from Homan that strict compliance with NHTSA guidelines was required was not a rule of evidence. Never have so many worked so hard to give up so much.

Just what basis the Legislature had for saying that substantial compliance with the NHTSA tests reliable when the NHTSA books themselves say that it doesn’t has never been revealed to us. But perhaps if the Legislature enacts a bill that says water runs up hill we should all start building hydroelectric plans on mountain tops.

Of course Mark Twain must be given the last word (or two). He said: “No man’s wallet is safe while the legislature is in session.” He also said that: “Figures don’t lie, but liars figure.”

Fight your DUI charge

Court Cannot Stop Questions on Administration of Field Sobriety Testing

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.