State v. BoczarState v. Boczar
{¶ 1} Today this court must determine whether
Facts
{¶ 2} On August 3, 2003, Ohio State Highway Patrol Trooper Scott Balcomb stopped John M. Boczar, defendant-appellant, for speeding. When Trooper Balcomb asked for defendant’s license and registration, he immediately noticed a strong odor of alcohol on defendant. Aside from the odor of alcohol, Trooper Balcomb testified that defendant’s eyes were “glossy,” and he could tell that defendant had been drinking.
{¶ 3} Trooper Balcomb testified that defendant’s speech was slow and that defendant had a difficult time removing his driver’s license from his wallet. Defendant initially denied that he had been drinking and said that he was on his way home from work. When Trooper Balcomb later asked defendant how much he had had to drink, defendant stated that he had had three beers and that he was coming from Jewel’s Dance Hall in Austinburg.
{¶ 4} Sergeant George Biskup arrived on the scene and informed Trooper Balcomb that before Balcomb pulled the defendant over, Biskup had observed defendant’s vehicle cross the center line for about half a car width and swerve back. Trooper Biskup also smelled alcohol on defendant.
{¶ 5} Pursuant to National Highway Traffic Safety Administration guidelines, Trooper Balcomb asked defendant to perform three field sobriety tests: the horizontal gaze nystagmus (“HGN”), the walk-and-turn, and the one-leg stand. On the HGN test, defendant demonstrated four of the possible six clues of
{¶ 6} Based on these tests and his initial observations, Trooper Balcomb placed defendant under arrest for operating a motor vehicle under the influence of alcohol in violation of
{¶ 7} Defendant was charged with one count of operating a motor vehicle under the influence in violation of former
{¶ 8} The Ashtabula County Court of Appeals affirmed the judgment of the trial court. State v. Boczar, 11th Dist. No. 2004-A-0063,
Law and Analysis
{¶ 9} We begin by observing that all statutes are presumed constitutional, and the party challenging a statute bears the burden of proving otherwise. Arnold v. Cleveland (1993),
{¶ 10} In 2000, this court held that “[i]n order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures.”
{¶ 11} In 2002, the General Assembly enacted Am.Sub.S.B. No. 163, amending
{¶ 12} “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 by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply:
{¶ 13} “(i) The officer may testify concerning the results of the field sobriety test so administered.
{¶ 14} “(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution * * *.
{¶ 15} “(Hi) If testimony is presented or evidence is introduced under division (D)(4)(b)® or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate.” (Emphasis added.)
{¶ 16} Defendant contends that the Homan decision was based on an interpretation of
{¶ 17} Defendant challenges the constitutionality of
{¶ 19} Defendant claims that
{¶ 20} Next, defendant points to State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999),
{¶ 21} In fact, in a case that involved an arrest before passage of S.B. 163, when this court extended Homan to apply to the admissibility of the results of field sobriety tests at trial, the court acknowledged the limited application of Homan, because the General Assembly had amended
{¶ 22} The General Assembly did not encroach on the exclusive rule-making authority of the judiciary in amending
{¶ 23} The trial judge is the guardian of the admissibility of evidence. Homan was based on test procedures published by the National Highway Traffic Safety Administration, not the constitution, a statute, or even a rule of evidence. This case, however, involves a legislative mandate by which the General Assembly through its deliberative process has concluded that failure to strictly comply with test procedures affects the evidentiary value of field sobriety tests but that
{¶ 24} Accordingly, we hold that the substantial-compliance standard adopted by amendment to
{¶ 25} The conflict cases from the Fifth District Court of Appeals uphold the constitutionality of
{¶26} This court has held: “The HGN test cannot be compared to other scientific tests, such as a polygraph examination, since no special equipment is required in its administration. * * * The admission of the results of the HGN test is no different from any other field sobriety test, such as finger-to-nose, walk-and-turn, or one-leg stand.” (Emphasis added.) State v. Bresson (1990),
{¶ 27} Therefore, we hold that HGN test results are admissible in Ohio without expert testimony so long as the proper foundation has been shown both as to the administering officer’s training and ability to administer the test and as to the actual technique used by the officer in administering the test.
Conclusion
{¶ 28} For the foregoing reasons, this court holds that
Judgment affirmed.