By SHELLEY GRIESHOP
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
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
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
“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
“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 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.