Field sobriety testing and NHTSA compliance
In Ohio v. KRUMPELMAN, decided on December 19, 2008, we have a really good example of a very weak attack on standardized field sobriety testing. It is the types of arguments made in this case that cause lawyers to lose credibility with judges, prosecutors and juries. The DUI defendant here is essentially arguing that unless the field sobriety tests are given verbatim from the guidelines that the officer has not complied with the regulations.
Excerpts from the opinion:
In her second assignment of error, Krumpelman argues that the trial court should have suppressed the results of the three field sobriety tests administered by Steele because they were not performed in substantial compliance with the NHTSA manual. We disagree.
In support of this, she quotes the transcript where Steele said, "I have them stand facing me with their hands down at their sides. Then I ask them if they wear any glasses or contacts, or anything that they have medical conditions for, or anything like that. Once I do that, I check to make sure the pupil sizes are dilated properly." In her quotation of the transcript, however, Krumpelman omits the second sentence--and does not indicate that the sentence has been omitted by ellipses; that sentence reads, "I explain to them what I'm going to do at this point." Under these circumstances, we reject Krumpelman's argument on this point.
Regarding the One Leg Stand test, the basis for the argument is that the instructions require 114 words to be spoken and that Steele "failed to give 43% of the required instructions." The same is true with the Walk and Turn test, except that the math changes--with Krumpelman arguing that Steele omitted "49% of the required instructions."
We summarily reject the argument that substantial compliance can be resolved at the end of a mathematical equation. In her brief, Krumpelman sets out the instructions as they existed in the 2006 NHTSA testing standards. She then strikes through those words that she claims Steele failed to intone during the stop. Other than the percentage discrepancies, Krumpelman does not argue how Steele did not substantially comply with the NHTSA requirements or how the words left out were essential to establishing substantial compliance.
Analysis: Any time you have to count words in a transcript and, without cross on the number of words used, hang and argument on the word count, the argument is weak.
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