2nd District holds that field sobriety tests that deviate from NHTSA standards are admissible, if the deviations did not affect the results.
September 16, 2016
Starks was stopped after an officer paced him speeding in excess of 100mph. After observing signs of impairment, the officer conducted a the HGN test where he reported 6 out of 6 clues as well as the one-leg test, which he stopped because Starks almost fell. Starks was ultimately convicted of and OVI at the Dayton Municipal Court and thereafter appealed, challenging the admissibility of the field sobriety tests.
The 2nd District reviewed that field sobriety tests may be admitted when they substantially comply with National Highway Traffic Safety Administration (NHTSA) standards. Starks argued that for the HGN test the officer did not tell him to to follow the stimulus until told to stop. The 2nd District concluded that, regardless, Starks was able to perform the test for the time required without stopping prematurely. As a result, the 2nd District concluded that even if the the failure in instructions did not comply with NHTSA, it did not result in an invalid test so it was still admissible.
Starks also argued that the one-leg stand test did not comply because the officer added an unapproved instruction to lift his foot again if it touched the ground. Starks argued that was not part of the instructions and could lead a suspect to believe he could place his foot on the ground. The 2nd District reasoned, however, that this had no affect on the results of the test because, "Starks was initially unable to lift his foot, and he started to fall as soon as he did so. Colbert testified that he then terminated the test for Starks's safety."
As a result, the tests were permitted, even if they did not comply with NHTSA standards, because the 2nd District reasoned that the deviations from the standards did not affect the results.