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The Daily



12-04-03: Auglaize County challenges sobriety test law


The Auglaize County Prosecutor’s Office is appealing an alleged drunk driving case that challenges Ohio’s law on the acceptance of sobriety tests as evidence in court.
The appeal to the Third District Court of Appeals in Lima is based on a case pending in Auglaize County Municipal Court against Robert Phipps of Wapakoneta. Phipps, who was arrested for DUI (driving under the influence) and speeding in June, is represented by attorney Eric Allen of the Poppe Law Office in Wapakoneta.
In August, Allen filed a motion to suppress the evidence in the case based on inaccurately administered sobriety tests given to Phipps. Auglaize County Municipal Court Judge Gary Herman granted the motion.
Herman filed a journal entry last week giving the prosecutor’s office the green light to appeal the pending case. In the entry, Herman said he believes the Ohio law concerning the admittance of field sobriety test evidence has some “major conceptual problems.”
The issue isn’t a new one and has been brought before appeals courts in Ohio multiple times since the precedent-setting Supreme Court ruling of “State of Ohio vs. Homan” in 2000, and the controversial amendment by the Ohio Legislature that followed.
In the Homan case (against Marie Homan), which originated in Erie County, the Supreme Court ruled in 2000 that in order for results of a field sobriety test to serve as evidence of probable cause to arrest, officers must administer the test in “strict compliance with standardized testing procedures.” The case set precedent statewide.
A case originating in Mercer County Common Pleas Court — State of Ohio vs. Kevin Schmitt — was reviewed by an appeals court on the same issue of evidence admissibility and is currently awaiting a ruling by the Supreme Court of Ohio.
Following the Supreme Court’s ruling on the Homan case, the Ohio Legislature added an amendment that many attorneys and judges deemed unconstitutional. The amendment provides that field test results are admissible if they are administered in “substantial compliance” with testing standards.
Poppe said the amendment allows for too much “gray” area and lets officers get away with sloppy administration of sobriety tests. The standard tests set by the National Highway Traffic Safety Administration (NHTSA) include the horizontal gaze nystagmus (HGN), the one-legged stand and the walk and turn.
“The public should have been happy with the Homan case. It shouldn’t be difficult for officers to do their job correctly, the tests are so simple,” Poppe added.
The field sobriety tests were designed to be easily given and the results used as scientific evidence, Poppe said. Experts shouldn’t be needed to verify the results. “It’s true science,” he said.
In Herman’s entry last week, he states his court must follow the precedent set in the Homan case. He believes the observations of an officer or a videotape of the alleged drunken driver should be admissible in court, but acknowledges there are limitations.
“The limitation should be that the officer is not then permitted to draw a conclusion based upon the ‘points’ observed and the NHTSA standards that the individual was under the influence or that there was probable cause to arrest,” Herman wrote.
Herman said the action by the Ohio Legislature to permit the introduction of evidence that was improperly attained is invalid.
“Since the ruling in Homan supra is not a new evidentiary rule but an application of an existing rule to determine the admissibility of evidence,” the action to permit the evidence is invalid, he wrote.


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