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State v. Babel8/9/2004
onducted properly and in compliance with the NHTSA standards.
Before we determine whether the state met its burden at the suppression hearing, however, we must first determine whether the state was required to establish strict or substantial compliance at the suppression hearing. R.C. 4511.19(D)(4)(b), which now only requires officers to administer field sobriety tests in substantial compliance with standardized testing procedures, was amended April 9, 2003, after the suppression hearing but before the trial court's denial of appellant's motion to suppress. We must therefore determine whether newly amended R.C. 4511.19(D)(4)(b) applies retroactively.
Section 28, Article II of the Ohio Constitution prohibits the General Assembly from passing retroactive laws. Revised Code 1.48 codifies the long-standing rule that " statute is presumed to be prospective in its operation unless expressly made retroactive." The issue of whether a statute may constitutionally be applied retroactively "requires the court first to determine whether the General Assembly expressly intended the statute to apply retroactively. * If so, the court moves on to the question of whether the statute is substantive, rendering it unconstitutionally retroactive, as opposed to merely remedial." Bielat v. Bielat, 87 Ohio St.3d 350, 353, 2000-Ohio-451. Thus, "inquiry into whether a statute may constitutionally be applied retrospectively continues only after a threshold finding that the General Assembly expressly intended the statute to apply retrospectively." Id. " bsent a clear pronouncement by the General Assembly that a statute is to be applied retrospectively, a statute may be applied prospectively only." State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, .
Upon reviewing newly amended R.C. 4511.19(D)(4)(b), we find that there is no language in the provision that it be applied retroactively. "In drafting prior legislative enactments and amendments, the General Assembly certainly has demonstrated its ability to include retrospective language when it so desires." Id. at . It has failed to do so in the provision at issue. We therefore hold that R.C. 4511.19(D)(4)(b), amended effective April 9, 2003, applies prospectively only. It follows that at the suppression hearing, the state was required to establish that the field sobriety tests were administered in strict compliance with standardized testing procedures.
At the hearing, Officer Schmitz testified that he had been trained at the Ohio State Patrol Academy and was certified to administer the HGN, walk and turn, and one-leg stand tests, that his training was "consistent" with the NHTSA manual, and that he administered the HGN and walk and turn tests in the way he had been trained. The officer described the specific instructions he gave appellant before administering the HGN and walk and turn tests. The officer also testified as to how appellant performed the HGN and walk and turn tests.
Upon reviewing the officer's testimony, we find that while the state established that the HGN test was conducted in strict compliance with the NHTSA standards, it failed to establish that the walk and turn test was conducted in strict compliance with the NHTSA standards. The record shows that on direct examination, the officer's description of the instructions he gave appellant for each test did not specifically answer each and every allegation raised in appellant's motion to suppress regarding the two tests. However, by answering open-ended questions on cross-examination, the officer responded to each and every allegation raised in the motion to suppress regarding the HGN test. As a result, the state established that the HGN test was conducted in
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