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The Daily



09-25-03: Ohio Supreme Court considers DUI case involving ex-Celina man


COLUMBUS — The Ohio Supreme Court heard oral arguments from Mercer County Prosecutors and Celina defense attorney Jim Tesno on Wednesday on a question of what observational information can become evidence in a DUI case.
Being appealed in the high court is the State of Ohio vs. Kevin Schmitt, a driving under the influence case brought against former Celina resident Schmitt.
Schmitt, who now lives in Montgomery County, was arrested for allegedly driving under the influence June 22, 2001. He was stopped by an officer of the Ohio State Highway Patrol on Ohio 219 in Franklin Township. The officer administered the three approved tests for determining an intoxicated driver, the horizontal gaze nystagmus (HGN), the one-legged stand, and the walk and turn.
The field sobriety tests were later ruled inadmissible by both the Third District Court of Appeals in Lima and Judge Jeffrey Ingraham in Mercer County Common Pleas Court because the tests were administered in incorrect order.
Mercer County prosecutors were not arguing the admission of the field test, county prosecutor Andy Hinders said. The office has appealed the decision to not allow the general observations of the officer in the case.
“If a person was standing across the street and witnessed the stop, his testimony would be allowed,” Hinders said. “The officer should be able to say what he witnessed.”
“The court of appeals decision, as I interpret it, says the officer’s testimony can’t be considered if the test was improperly given,” Tesno argued before the seven justices. “The tests are beyond a common person’s experience. People don’t stand normally on one leg and count to 30. These are not common experiences.”
“If the police officer gave the evidence properly, we wouldn’t be here,” Tesno added.
Assistant prosecutor Matt Fox delivered the bulk of the Mercer County Prosecutor Office’s oral argument.
Both sides said the part of the test that was administered improperly was the HGN test, but offered no other details.
Tesno said the test approved by National Highway Traffic Safety Association (NHTSA) should be administered in specific order because of the results of studies that have determined the effectiveness of the tests. However, recent legislation was passed in the state saying that officers needed only to reach substantial compliance when administering the tests.
“That is why legislation was passed recently saying there only had to be substantial compliance when administering the tests,” Hinders said. “There is no way to do it 100 percent. In a scientific study, you can measure exact distances. But an officer can’t stand out there with a ruler and protractor and measure exactly 12 to 15 inches from their face or exactly 45 degrees from the center of their face.”
Tesno disagreed.
“If an eye doctor or a surgeon doesn’t do their job 100 percent accurate, we call it malpractice,” Tesno said. “We don’t shake their hand and say nice try.”
“So are you suggesting the total package be excluded if there is one flaw?,” Justice Maureen O’Connor asked.
“The only way to do that would be to hire professional witnesses,” Tesno said. “A jury has no gauge to go by. They don’t have the professional training to administer the tests where an officer does.”
William Schenck Jr. spoke on behalf of the Ohio Prosecuting Attorneys Association. Schenk is the Green County prosecutor.
“There is fear about where this path is going and we don’t want to see it go that way,” Schenk said. “Is this going to lead next to an officer can’t attest to other observations. It will lead to arguments across the state in DUI cases.”
This is an important case because it will have tremendous statewide impact,” Hinders said.
Chief Justice Thomas Moyer said that the court would consider the arguments and render its decision later. Hinders guessed it would take about two months.


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