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State v. Babel8/9/2004
strict compliance with the NHTSA standards.
By contrast, while the officer's testimony on crossexamination covered most of the specific allegations raised in the motion to suppress regarding the walk and turn test, it did not respond to all of the allegations. In her motion to suppress, appellant specifically argued that when administering the walk and turn test, the officer failed to instruct her as follows: "While you are walking, keep your arms at your sides, watch your feet at all times, and count you steps out loud. Once you start walking, don't stop until you have completed the test. Begin, and count your first step from heel-to-toe position as 'One'." We agree. Whether on direct or cross-examination, the officer never testified providing the foregoing instructions to appellant. As a result, the state failed to establish that the walk and turn was conducted in strict compliance with the NHTSA standards.
Because the state failed to prove that the walk and turn test was conducted in strict compliance with the NHTSA standards, the results of this field sobriety test should have been suppressed. See State v. Nickelson (July 20, 2001), Huron App. No. H-00-036. The trial court, therefore, erred by overruling appellant's motion to suppress the results of the walk and turn test. Appellant's assignment of error is accordingly overruled with regard to the HGN test but well-taken and sustained with regard to the walk and turn test.
The trial court's judgment is therefore affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and remanded.
POWELL and WALSH, JJ., concur.
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