Substantial Compliance and the Horizontal Gaze Nystagmus Test
January 20, 2008
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:
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