State v. Hall

{¶ 25} I concur with the decision of the majority to reverse and remand this matter to the trial court for purposes of determining whether the nonscientific, psychomotor field sobriety tests were performed in substantial compliance with the applicable standards. I agree with the majority that if these tests were performed in substantial compliance with the standards, then the results are admissible at trial and that R.C.4511.19(D) is constitutional as to nonscientific, psychomotor field sobriety tests.

{¶ 26} I dissent from the conclusion of the majority that R.C. 4511.19(D) is unconstitutional in regard to the admissibility of the results of an HGN test performed in substantial compliance with NHTSA standards. Instead, I would hold that R.C. 4511.19, which provides for admission of field sobriety tests that are administered in substantial compliance with NHTSA testing procedures, is constitutional for the reasons set forth in my concurring opinion in Mount Vernon v. Seng, 5th Dist. No. 04CA000012, 2005-Ohio-2915, 2005 WL 1384628.

{¶ 27} However, I do limit my conclusion regarding the constitutionality of R.C. 4511.19 to the constitutional issue that has been raised in the case sub judice. That issue is whether R.C. 4511.19 conflicts with Evid.R. 702 as applied inHoman. I do not draw any conclusion at this time as to whether R.C. 4511.19 denies due process of law when it allows for the admissibility of field sobriety test results when those tests are done in substantial compliance with NHTSA standards. Such a denial of due process would exist if scientific data does not support R.C. 4511.19.