State v. BabelState v. Babel
- Reporters:
- ,
- Before:
- Young, Powell, Walsh
YOUNG, P.J.
{¶1} Plaintiff-appellant, Gretchen Babel, appeals her conviction in the Butler County Area III Court for driving under the influence of alcohol (“DUI“).
{¶2} In the early hours of December 7, 2002, Officer Neil Schmitz of the West Chester Police Department observed appellant drive at a high rate of speed on Tylersville Road in West Chester
{¶3} Appellant told the officer that she was on her way home from a Christmas party and that she had had a few beers at the party. As they spoke, the officer noticed that appellant smelled strongly of alcohol, that her eyes were bloodshot, that her answers were “slow delivered,” and that she would not look directly at him. The officer administered the Horizontal Gaze Nystagmus (“HGN“) test and the walk and turn test. When asked to also perform the one-leg stand test, appellant refused. After these tests, appellant was arrested and transported to the police station where she refused to take a breath test.
{¶4} Appellant was charged with DUI in violation of
{¶5} The case proceeded to a jury trial. On August 28, 2003, a jury found appellant guilty of DUI in violation of
{¶6} In her sole assignment of error, appellant argues that the trial court erred by not suppressing the results of the HGN and walk and turn tests. Appellant contends that the state failed to establish that the field sobriety tests were conducted in either strict or substantial compliance2 with standardized testing procedures.
{¶7} To suppress evidence obtained as a result of a warrantless search or seizure, a defendant must raise the grounds on which the validity of the search or seizure is challenged with enough specificity to give the state notice of the basis for the challenge. Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph one of the syllabus. Once a defendant has made this
{¶8} In the case at bar, appellant‘s motion to suppress was specific enough to put the state on notice that appellant‘s bases for suppression included whether the field sobriety tests were conducted properly and in compliance with standardized testing procedures: for each field sobriety test, appellant listed a number of very specific instructions the officer had failed to give her while administering the field sobriety tests. Appellant‘s motion and memorandum were therefore enough to shift the burden to the state to establish that, in this instance, the field sobriety tests were conducted properly and in compliance with the NHTSA standards.
{¶9} Before we determine whether the state met its burden at the suppression hearing, however, we must first determine whether the state was required to establish strict or substantial compliance at the suppression hearing.
{¶10}
{¶11} Upon reviewing newly amended
{¶12} At the hearing, Officer Schmitz testified that he had been trained at the Ohio State Patrol Academy and was certified to administer the HGN, walk and turn, and one-leg stand tests, that his training was “consistent” with the NHTSA manual, and that he administered the HGN and walk and turn tests in the way he had been trained. The officer described the specific instructions he gave appellant before administering the HGN and walk and turn tests. The officer also testified as to how appellant performed the HGN and walk and turn tests.
{¶13} Upon reviewing the officer‘s testimony, we find that while the state established that the HGN test was conducted in strict compliance with the NHTSA standards, it failed to establish that the walk and turn test was conducted in strict compliance with the NHTSA standards. The record shows that on direct examination, the officer‘s description of the instructions he gave appellant for each test did not specifically answer each and every allegation raised in appellant‘s motion to suppress regarding the two tests. However, by answering open-ended questions on cross-examination, the officer responded to each and every allegation raised in the motion to suppress regarding the
{¶14} By contrast, while the officer‘s testimony on cross-examination covered most of the specific allegations raised in the motion to suppress regarding the walk and turn test, it did not respond to all of the allegations. In her motion to suppress, appellant specifically argued that when administering the walk and turn test, the officer failed to instruct her as follows: “While you are walking, keep your arms at your sides, watch your feet at all times, and count you[r] steps out loud. Once you start walking, don‘t stop until you have completed the test. Begin, and count your first step from heel-to-toe position as ‘One‘.” We agree. Whether on direct or cross-examination, the officer never testified providing the foregoing instructions to appellant. As a result, the state failed to establish that the walk and turn was conducted in strict compliance with the NHTSA standards.
{¶15} Because the state failed to prove that the walk and turn test was conducted in strict compliance with the NHTSA standards, the results of this field sobriety test should have been suppressed. See State v. Nickelson (July 20, 2001), Huron App. No. H-00-036. The trial court, therefore, erred by overruling appellant‘s motion to suppress the results of the walk and turn test. Appellant‘s assignment of error is accordingly overruled with regard to the HGN test but well-taken and sustained with regard to the walk and turn test.
{¶16}
{¶17} Judgment affirmed in part, reversed in part, and remanded.
POWELL and WALSH, JJ., concur.