By LANCE MIHM
lmihm@dailystandard.com
COLUMBUS — The Ohio Supreme Court heard oral arguments
from Mercer County Prosecutors and Celina defense attorney Jim
Tesno on Wednesday on a question of what observational information
can become evidence in a DUI case.
Being appealed in the high court is the State of Ohio vs. Kevin
Schmitt, a driving under the influence case brought against
former Celina resident Schmitt.
Schmitt, who now lives in Montgomery County, was arrested for
allegedly driving under the influence June 22, 2001. He was
stopped by an officer of the Ohio State Highway Patrol on Ohio
219 in Franklin Township. The officer administered the three
approved tests for determining an intoxicated driver, the horizontal
gaze nystagmus (HGN), the one-legged stand, and the walk and
turn.
The field sobriety tests were later ruled inadmissible by both
the Third District Court of Appeals in Lima and Judge Jeffrey
Ingraham in Mercer County Common Pleas Court because the tests
were administered in incorrect order.
Mercer County prosecutors were not arguing the admission of
the field test, county prosecutor Andy Hinders said. The office
has appealed the decision to not allow the general observations
of the officer in the case.
“If a person was standing across the street and witnessed
the stop, his testimony would be allowed,” Hinders said.
“The officer should be able to say what he witnessed.”
“The court of appeals decision, as I interpret it, says
the officer’s testimony can’t be considered if the
test was improperly given,” Tesno argued before the seven
justices. “The tests are beyond a common person’s
experience. People don’t stand normally on one leg and
count to 30. These are not common experiences.”
“If the police officer gave the evidence properly, we
wouldn’t be here,” Tesno added.
Assistant prosecutor Matt Fox delivered the bulk of the Mercer
County Prosecutor Office’s oral argument.
Both sides said the part of the test that was administered improperly
was the HGN test, but offered no other details.
Tesno said the test approved by National Highway Traffic Safety
Association (NHTSA) should be administered in specific order
because of the results of studies that have determined the effectiveness
of the tests. However, recent legislation was passed in the
state saying that officers needed only to reach substantial
compliance when administering the tests.
“That is why legislation was passed recently saying there
only had to be substantial compliance when administering the
tests,” Hinders said. “There is no way to do it
100 percent. In a scientific study, you can measure exact distances.
But an officer can’t stand out there with a ruler and
protractor and measure exactly 12 to 15 inches from their face
or exactly 45 degrees from the center of their face.”
Tesno disagreed.
“If an eye doctor or a surgeon doesn’t do their
job 100 percent accurate, we call it malpractice,” Tesno
said. “We don’t shake their hand and say nice try.”
“So are you suggesting the total package be excluded if
there is one flaw?,” Justice Maureen O’Connor asked.
“The only way to do that would be to hire professional
witnesses,” Tesno said. “A jury has no gauge to
go by. They don’t have the professional training to administer
the tests where an officer does.”
William Schenck Jr. spoke on behalf of the Ohio Prosecuting
Attorneys Association. Schenk is the Green County prosecutor.
“There is fear about where this path is going and we don’t
want to see it go that way,” Schenk said. “Is this
going to lead next to an officer can’t attest to other
observations. It will lead to arguments across the state in
DUI cases.”
This is an important case because it will have tremendous statewide
impact,” Hinders said.
Chief Justice Thomas Moyer said that the court would consider
the arguments and render its decision later. Hinders guessed
it would take about two months.
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