Probable Cause to Arrest for OVI May Be Predicated on Other than Field Sobriety Tests

	Those who are regular readers of this blog are very familiar with the case of State v. Homan, 89 Ohio St.3d 421,  732 N.E.2d 952.  The case was a landmark as it precipitated a change in Ohio law regarding the level of compliance necessary to accept field sobriety tests (FSTs) into evidence.  The case was also important as The Ohio Supreme Court ruled that probable cause to arrest may be based on other “extrinsic” evidence notwithstanding the admissibility of FSTs.  While the case set forth a standard for the admissibility of FSTs (strict compliance with the standards of the NHTSA manual - subsequently reduced to substantial compliance by statute), the court also stated that probable cause to arrest exists even if FSTs are inadmissible if the arresting officer can point to other evidence of insobriety.
	A perfect example of the application of Homan was set forth in Fifth Appellate District case of State v. Harlan, 2011 Ohio 6884.  The defendant was stopped for failure to stay within marked lanes.  The officer observed the defendant weaving back and forth several times crossing the center and side lines of the road.  Upon investigation, the officer observed a strong odor of alcohol coming from the defendant’s person.  The defendant admitted coming from a bar where she had consumed “a couple of “shots.”  The officer performed a Horizontal Gaze Nystagmus test and found sufficient clues to warrant the arrest of the defendant.
	The defendant filed a motion to suppress.  The motion stated that the officer failed to administer the HGN test in substantial compliance with NHTSA standards. Additionally, the defendant claimed that without the results of the HGN test, the officer was without probable cause to arrest the defendant.
	The court began its discussion by agreeing that the state failed to produce sufficient evidence to show that the officer substantially complied with NHTSA standards and suppressed the HGN test.  But the court went further to state that the officer had sufficient other evidence to produce probable cause for the arrest.
	The court pointed to the fact that the traffic violation by the defendant was more than a de minimus violation.  In addition, the officer stated that a strong odor of alcohol was emanating from the defendant and, further, the defendant’s admission to having two “shots” and coming from a bar just prior to the stop.  The court concluded these facts produced sufficient extrinsic evidence for probable cause to arrest, Homan, Supra.

This entry was posted on Thursday, January 5th, 2012 at 11:50 am and is filed under Constitutional Issues - Probable Cause, Evidence/Trial Practice, Suppression Issues. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.