horizontal gaze nystagmus test in Ohio

2004Appellant contends that the field sobriety tests conducted by the officer were not in strict compliance with standardized testing procedures as required by State v. Holman, 89 Ohio St.3d 421 , 2000-Ohio-212 . {¶ 28} Even though the arresting officer testified that he had performed the field sobriety tests utilizing printed instructions from which he read, appellant insisted that the time the officer reported for conducting the horizontal gaze nystagmus test was insufficient to properly administer the test.

2004Appellant now appeals his conviction and raises the following single assignment of error: {¶ 7} "The trial court erred to the prejudice of defendant-appellant when it permitted trial testimony regarding the horizontal gaze nystagmus test and the two field sobriety tests." {¶ 8} In State v. Homan, 89 Ohio St.3d 421 , 2000-Ohio-212 , the Ohio Supreme Court determined that in order for the results of field sobriety tests to be admissible on the issue of probable cause to arrest, the testing must have been conducted in strict compliance with NHTSA standards.

2004Appellant contends that the field sobriety tests conducted by the officer were not in strict compliance with standardized testing procedures as required by State v. Holman, 89 Ohio St.3d 421 , 2000-Ohio-212 . {¶ 28} Even though the arresting officer testified that he had performed the field sobriety tests utilizing printed instructions from which he read, appellant insisted that the time the officer reported for conducting the horizontal gaze nystagmus test was insufficient to properly administer the test.

2004Appellant now appeals his conviction and raises the following single assignment of error: {¶ 7} "The trial court erred to the prejudice of defendant-appellant when it permitted trial testimony regarding the horizontal gaze nystagmus test and the two field sobriety tests." {¶ 8} In State v. Homan, 89 Ohio St.3d 421 , 2000-Ohio-212 , the Ohio Supreme Court determined that in order for the results of field sobriety tests to be admissible on the issue of probable cause to arrest, the testing must have been conducted in strict compliance with NHTSA standards.

2020Montgomery No. 27141, 2017-Ohio-7743 , 97 N.E.3d 1137, ¶ 11 . 2 “The walk-and-turn test requires the suspect to walk a given number of steps, heel-to- toe, in a straight line.

2020Montgomery No. 27141, 2017-Ohio-7743 , 97 N.E.3d 1137, ¶ 11 . 2 “The walk-and-turn test requires the suspect to walk a given number of steps, heel-to- toe, in a straight line.

2016State v. Burnside, 100 Ohio St.3d 152 , 154–155, 2003–Ohio–5372, 797 N.E.2d 71, ¶ 8 .

2012Vol. I-IV) I. {¶18} First, Neale argues on appeal that the trial court should have suppressed the results of the horizontal gaze nystagmus test (HGN) conducted by the trooper at the scene.1 Neale also argues the trial court should have suppressed the results of the urine test for lack of substantial compliance with Ohio Department of Health (ODH) regulations as set forth in Ohio Administrative Code (OAC) 3701-53-05(F) and 3701- 53-06. {¶19} “Appellate review of a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152 , 2003-Ohio-5372 , ¶ 8.

2012State v. Ryan, supra. In State v. Boczar, the Ohio Supreme Court held that HGN test results are admissible in Ohio without expert testimony if substantial compliance with testing guidelines has been shown and a proper foundation has been established as to the administering officer's ability to administer the test and the officer's actual technique in administering the test. 113 Ohio St.3d 148 , 2007–Ohio–1251, ¶ 28. {¶26} In this case, Trooper Carr testified to his qualifications and training in administering the standardized field sobriety tests, as well as to the NHTSA guidelines for adminis

2008State v. Boczar , 113 Ohio St.3d 148 , 160 , 2007-Ohio-1251 , ¶ 27 .

2000When the police officer took the keys from the ignition, the seizure or detention of the individual was "so understood by the person arrested." Darrah, supra. In this case, the second trooper took the keys from the ignition while the first trooper began to administer the horizontal gaze nystagmus test to appellee.

2000When the police officer took the keys from the ignition, the seizure or detention of the individual was "so understood by the person arrested." Darrah, supra. In this case, the second trooper took the keys from the ignition while the first trooper began to administer the horizontal gaze nystagmus test to appellee.

2023State v. Lytle, 48 Ohio St.2d 391 , 358 N.E.2d 623 (1976), paragraph three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910 , 98 S.Ct. 3135 , 57 L.Ed.2d 1154 (1978). {¶40} Therefore, even if the trial court erred in suppressing this specific indicium of intoxication from the one leg stand test, it was harmless as Trooper Young substantially complied with NHTSA standards for the Horizontal Gaze Nystagmus test and walk and turn test, Trooper Young observed the odor of alcohol coming from inside the vehicle, Appellant had glassy/bloodshot eyes, and Appellant’s speech was s

2023State v. Lytle, 48 Ohio St.2d 391 , 358 N.E.2d 623 (1976), paragraph three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910 , 98 S.Ct. 3135 , 57 L.Ed.2d 1154 (1978). {¶40} Therefore, even if the trial court erred in suppressing this specific indicium of intoxication from the one leg stand test, it was harmless as Trooper Young substantially complied with NHTSA standards for the Horizontal Gaze Nystagmus test and walk and turn test, Trooper Young observed the odor of alcohol coming from inside the vehicle, Appellant had glassy/bloodshot eyes, and Appellant’s speech was s

2023Trumbull No 2005-T-0001, 2006-Ohio-6201 . {¶27} Trooper Young testified she conducts the Horizontal Gaze Nystagmus test based off the training she received from the NHTSA manual, how to conduct the test within the NHTSA standards, and how she conducted the test on Appellant.

2023Trumbull No 2005-T-0001, 2006-Ohio-6201 . {¶27} Trooper Young testified she conducts the Horizontal Gaze Nystagmus test based off the training she received from the NHTSA manual, how to conduct the test within the NHTSA standards, and how she conducted the test on Appellant.

2023State v. Lytle, 48 Ohio St.2d 391 , 358 N.E.2d 623 (1976), paragraph three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910 , 98 S.Ct. 3135 , 57 L.Ed.2d 1154 (1978). {¶40} Therefore, even if the trial court erred in suppressing this specific indicium of intoxication from the one leg stand test, it was harmless as Trooper Young substantially complied with NHTSA standards for the Horizontal Gaze Nystagmus test and walk and turn test, Trooper Young observed the odor of alcohol coming from inside the vehicle, Appellant had glassy/bloodshot eyes, and Appellant’s speech was s

2023State v. Lytle, 48 Ohio St.2d 391 , 358 N.E.2d 623 (1976), paragraph three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910 , 98 S.Ct. 3135 , 57 L.Ed.2d 1154 (1978). {¶40} Therefore, even if the trial court erred in suppressing this specific indicium of intoxication from the one leg stand test, it was harmless as Trooper Young substantially complied with NHTSA standards for the Horizontal Gaze Nystagmus test and walk and turn test, Trooper Young observed the odor of alcohol coming from inside the vehicle, Appellant had glassy/bloodshot eyes, and Appellant’s speech was s

2023State v. Lytle, 48 Ohio St.2d 391 , 358 N.E.2d 623 (1976), paragraph three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910 , 98 S.Ct. 3135 , 57 L.Ed.2d 1154 (1978). {¶40} Therefore, even if the trial court erred in suppressing this specific indicium of intoxication from the one leg stand test, it was harmless as Trooper Young substantially complied with NHTSA standards for the Horizontal Gaze Nystagmus test and walk and turn test, Trooper Young observed the odor of alcohol coming from inside the vehicle, Appellant had glassy/bloodshot eyes, and Appellant’s speech was s

2023State v. Lytle, 48 Ohio St.2d 391 , 358 N.E.2d 623 (1976), paragraph three of the syllabus, vacated on other grounds in Lytle v. Ohio, 438 U.S. 910 , 98 S.Ct. 3135 , 57 L.Ed.2d 1154 (1978). {¶40} Therefore, even if the trial court erred in suppressing this specific indicium of intoxication from the one leg stand test, it was harmless as Trooper Young substantially complied with NHTSA standards for the Horizontal Gaze Nystagmus test and walk and turn test, Trooper Young observed the odor of alcohol coming from inside the vehicle, Appellant had glassy/bloodshot eyes, and Appellant’s speech was s

2018Medina No. 16CA0049-M, 2017-Ohio-5622, ¶ 14 , quoting State v. George, 9th Dist.

2017Lorain Nos. 10CA009931, 2011-Ohio-6681 , 2011 WL 6838669 , ¶ 12 (concluding that sufficient evidence of impairment existed when the officer observed slurred speech, bloodshot, glassy eyes, the smell of alcohol, and there was evidence that the defendant failed the horizontal gaze nystagmus test).

2016Id.

2014The dissenting judge stated: “Far from the motion to suppress in Zink, which broadly alleged violations of R.C. 4511.19(D), R.C. 4511.191(A)-(D), and OAC 3701-53-01 et seq., Ms.Codeluppi narrowly alleged that the officer had not conducted the horizontal-gaze-nystagmus test, the walk-and-turn test, or the one-legged-stand test in substantial compliance with NHTSA as required by R.C. 4511.19(D)(b)(4).” Id.

2007Appellant relies on this Court's decisions in State v. Robinson , 160 Ohio App.3d 802 , 2005-Ohio-2280 , 828 N.E.2d 1050 and State v. Hall , 163 Ohio App.3d 90 , 2005-Ohio-4271 , 836 N.E.2d 614 which held that HGN test results were not admissible absent strict compliance with the testing procedures. {¶ 17} R.C. 4511.19 to provide, in pertinent part: {¶ 18} "In any criminal prosecution * * * for a violation of division (A) or (B) of this section, * * * if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown

2007Appellant relies on this Court's decisions in State v. Robinson , 160 Ohio App.3d 802 , 2005-Ohio-2280 , 828 N.E.2d 1050 and State v. Hall , 163 Ohio App.3d 90 , 2005-Ohio-4271 , 836 N.E.2d 614 which held that HGN test results were not admissible absent strict compliance with the testing procedures. {¶ 17} R.C. 4511.19 to provide, in pertinent part: {¶ 18} "In any criminal prosecution * * * for a violation of division (A) or (B) of this section, * * * if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown

2007Appellant relies on this Court's decisions in State v. Robinson , 160 Ohio App.3d 802 , 2005-Ohio-2280 , 828 N.E.2d 1050 and State v. Hall , 163 Ohio App.3d 90 , 2005-Ohio-4271 , 836 N.E.2d 614 which held that HGN test results were not admissible absent strict compliance with the testing procedures. {¶ 17} R.C. 4511.19 to provide, in pertinent part: {¶ 18} "In any criminal prosecution * * * for a violation of division (A) or (B) of this section, * * * if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown

2007Appellant relies on this Court's decisions in State v. Robinson , 160 Ohio App.3d 802 , 2005-Ohio-2280 , 828 N.E.2d 1050 and State v. Hall , 163 Ohio App.3d 90 , 2005-Ohio-4271 , 836 N.E.2d 614 which held that HGN test results were not admissible absent strict compliance with the testing procedures. {¶ 17} R.C. 4511.19 to provide, in pertinent part: {¶ 18} "In any criminal prosecution * * * for a violation of division (A) or (B) of this section, * * * if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown

2006Because of the cold and snowy conditions that evening, the officer deferred further field sobriety tests. {¶ 6} The first officer arrested appellant for operating a motor vehicle while under the influence of alcohol and transported her to the police station where he advised her of her rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436 , and requested that she perform further field sobriety tests and take a breathalyzer test, all of which she declined. {¶ 7} Police charged appellant with a violation of R.C. 4511.19 (A)(1)(a) and open container.

2006In the recently decided case of State v. Griffin, Butler App. No. CA2005-05-018, 2006-Ohio-2399 , 2006 WL 1312529 , the Twelfth District Court of Appeals placed a great deal of emphasis upon the fact that the appellant refused to complete the horizontal gaze nystagmus test and also refused to submit to the one-leg stand and walk-and-turn tests.

2005However, though of questionable logic, the Bresson case is the law in Ohio." Painter, Ohio Driving Under the Influence Law (2004 Ed.), Section 10:17 (citation and footnotes omitted). 2 See State v. Holt (2002), 119 Ohio Misc.2d 1 , 12 , 772 N.E.2d 203 ("While the results of the VGN may be useful in indicating the presence of drugs rather than alcohol, the use of drugs is not at issue in this case.

2005However, though of questionable logic, the Bresson case is the law in Ohio." Painter, Ohio Driving Under the Influence Law (2004 Ed.), Section 10:17 (citation and footnotes omitted). 2 See State v. Holt (2002), 119 Ohio Misc.2d 1 , 12 , 772 N.E.2d 203 ("While the results of the VGN may be useful in indicating the presence of drugs rather than alcohol, the use of drugs is not at issue in this case.

2005State v. Bey (1999), 85 Ohio St.3d 487 , 490 , 709 N.E.2d 484 . {¶ 31} In State v. Bresson (1990), 51 Ohio St.3d 123 , 123 , 554 N.E.2d 1330 , the court held: "A properly qualified officer may testify at trial regarding a driver's performance on the horizontal gaze nystagmus test as it pertains to the issues of probable cause to arrest and whether the driver was operating a vehicle while under the influence of alcohol.

2005State v. Bey (1999), 85 Ohio St.3d 487 , 490 , 709 N.E.2d 484 . {¶ 31} In State v. Bresson (1990), 51 Ohio St.3d 123 , 123 , 554 N.E.2d 1330 , the court held: "A properly qualified officer may testify at trial regarding a driver's performance on the horizontal gaze nystagmus test as it pertains to the issues of probable cause to arrest and whether the driver was operating a vehicle while under the influence of alcohol.

2004Officer Swanson did not appear to testify regarding the results of the test. 4 (1998), 126 Ohio App.3d 95 . 5 Id. 6 (1968), 392 U.S. 1 . 7 State v. Ford (1989), 64 Ohio App.3d 105 . 8 Terry, 392 U.S. at 21 . 9 Dayton v. Erickson (1996) 76 Ohio St.3d 3 , 11-12 . 10 89 Ohio St.3d 421 , 2000-Ohio-212 . 11 101 Ohio St.3d 79 , 2004 Ohio 37 , at P15. 12 The Court also noted that pending the appeal of the case, the legislature had amended R.C. 4511.19 and that strict compliance with testing standards is no longer required.

2004Officer Swanson did not appear to testify regarding the results of the test. 4 (1998), 126 Ohio App.3d 95 . 5 Id. 6 (1968), 392 U.S. 1 . 7 State v. Ford (1989), 64 Ohio App.3d 105 . 8 Terry, 392 U.S. at 21 . 9 Dayton v. Erickson (1996) 76 Ohio St.3d 3 , 11-12 . 10 89 Ohio St.3d 421 , 2000-Ohio-212 . 11 101 Ohio St.3d 79 , 2004 Ohio 37 , at P15. 12 The Court also noted that pending the appeal of the case, the legislature had amended R.C. 4511.19 and that strict compliance with testing standards is no longer required.

2004Officer Swanson did not appear to testify regarding the results of the test. 4 (1998), 126 Ohio App.3d 95 . 5 Id. 6 (1968), 392 U.S. 1 . 7 State v. Ford (1989), 64 Ohio App.3d 105 . 8 Terry, 392 U.S. at 21 . 9 Dayton v. Erickson (1996) 76 Ohio St.3d 3 , 11-12 . 10 89 Ohio St.3d 421 , 2000-Ohio-212 . 11 101 Ohio St.3d 79 , 2004 Ohio 37 , at P15. 12 The Court also noted that pending the appeal of the case, the legislature had amended R.C. 4511.19 and that strict compliance with testing standards is no longer required.

2004Officer Swanson did not appear to testify regarding the results of the test. 4 (1998), 126 Ohio App.3d 95 . 5 Id. 6 (1968), 392 U.S. 1 . 7 State v. Ford (1989), 64 Ohio App.3d 105 . 8 Terry, 392 U.S. at 21 . 9 Dayton v. Erickson (1996) 76 Ohio St.3d 3 , 11-12 . 10 89 Ohio St.3d 421 , 2000-Ohio-212 . 11 101 Ohio St.3d 79 , 2004 Ohio 37 , at P15. 12 The Court also noted that pending the appeal of the case, the legislature had amended R.C. 4511.19 and that strict compliance with testing standards is no longer required.

2004Officer Swanson did not appear to testify regarding the results of the test. 4 (1998), 126 Ohio App.3d 95 . 5 Id. 6 (1968), 392 U.S. 1 . 7 State v. Ford (1989), 64 Ohio App.3d 105 . 8 Terry, 392 U.S. at 21 . 9 Dayton v. Erickson (1996) 76 Ohio St.3d 3 , 11-12 . 10 89 Ohio St.3d 421 , 2000-Ohio-212 . 11 101 Ohio St.3d 79 , 2004 Ohio 37 , at P15. 12 The Court also noted that pending the appeal of the case, the legislature had amended R.C. 4511.19 and that strict compliance with testing standards is no longer required.

2004Officer Swanson did not appear to testify regarding the results of the test. 4 (1998), 126 Ohio App.3d 95 . 5 Id. 6 (1968), 392 U.S. 1 . 7 State v. Ford (1989), 64 Ohio App.3d 105 . 8 Terry, 392 U.S. at 21 . 9 Dayton v. Erickson (1996) 76 Ohio St.3d 3 , 11-12 . 10 89 Ohio St.3d 421 , 2000-Ohio-212 . 11 101 Ohio St.3d 79 , 2004 Ohio 37 , at P15. 12 The Court also noted that pending the appeal of the case, the legislature had amended R.C. 4511.19 and that strict compliance with testing standards is no longer required.

2004Kilbane, J., concurs; 1 This case was stayed pending the Ohio Supreme Court's decision in State v. Schmitt, 101 Ohio St.3d 79 , 2004-Ohio-37 . 2 TR. at 10. 3 Because he was not certified to conduct the Horizontal Gaze Nystagmus test, the officer radioed Officer Swanson to perform the test.

2004Kilbane, J., concurs; 1 This case was stayed pending the Ohio Supreme Court's decision in State v. Schmitt, 101 Ohio St.3d 79 , 2004-Ohio-37 . 2 TR. at 10. 3 Because he was not certified to conduct the Horizontal Gaze Nystagmus test, the officer radioed Officer Swanson to perform the test.

2004According to Defendant, the videotape would have allowed him to present exculpatory evidence that showed he passed the horizontal gaze nystagmus test, his speech was not slurred, his eyes were not bloodshot, and he had no trouble walking; evidence that demonstrates he was not under the influence of alcohol. {¶ 13} Defendant relies upon cases from other appellate districts, State v. Benton (2000), 136 Ohio App.3d 810 ; State v. Benson, 152 Ohio App.3d 495 , 2003-Ohio-1944 , for the proposition that the destruction or failure to preserve videotapes of a DUI stop and arrest violates a defendant's

2004Officer Swanson did not appear to testify regarding the results of the test. 4 (1998), 126 Ohio App.3d 95 . 5 Id. 6 (1968), 392 U.S. 1 . 7 State v. Ford (1989), 64 Ohio App.3d 105 . 8 Terry, 392 U.S. at 21 . 9 Dayton v. Erickson (1996) 76 Ohio St.3d 3 , 11-12 . 10 89 Ohio St.3d 421 , 2000-Ohio-212 . 11 101 Ohio St.3d 79 , 2004 Ohio 37 , at P15. 12 The Court also noted that pending the appeal of the case, the legislature had amended R.C. 4511.19 and that strict compliance with testing standards is no longer required.

2004Officer Swanson did not appear to testify regarding the results of the test. 4 (1998), 126 Ohio App.3d 95 . 5 Id. 6 (1968), 392 U.S. 1 . 7 State v. Ford (1989), 64 Ohio App.3d 105 . 8 Terry, 392 U.S. at 21 . 9 Dayton v. Erickson (1996) 76 Ohio St.3d 3 , 11-12 . 10 89 Ohio St.3d 421 , 2000-Ohio-212 . 11 101 Ohio St.3d 79 , 2004 Ohio 37 , at P15. 12 The Court also noted that pending the appeal of the case, the legislature had amended R.C. 4511.19 and that strict compliance with testing standards is no longer required.