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In State v. Klein, Case No. 12 TRC 04904, a defendant was charged with a third OVI offense within six years and faced various penalties including a mandatory minimum sentence of sixty (60) days in jail. ZDL filed a motion to suppress in which they argued that the state trooper who arrested their client failed to administer the standardized field sobriety tests in substantial compliance with the National Highway Traffic and Safety Administration (NHTSA) standards and procedures. ZDL also argued that state trooper lacked probable cause to arrest their client for an OVI offense and that all evidence derived by law enforcement officers after their client’s arrest, including the client’s refusal to submit to a breath test, must be suppressed. The municipal court judge who presided over the suppression hearing agreed with ZDL’s arguments and ruled that the State Trooper lacked probable cause to arrest ZDL’s client. Based on the evidence presented during the suppression hearing, the judge found that the state trooper failed to administer any of the field sobriety tests in substantial compliance. As to the horizontal gaze nystagmus test (HGN), the judge found that the trooper did not substantially comply with the NHTSA standards on said test as the trooper moved the stimulus more rapidly than the NHTSA standards provide and that the trooper only checked the defendant’s right eye once when checking for direct and sustained nystagmus at maximum deviation instead of twice as required by NHTSA. The judge found that the trooper did not administer the walk and turn test in substantial compliance with NHTSA as the trooper admitted to walking alongside the defendant as the defendant attempted the test. The court reasoned that the NHTSA standards instruct administrators to avoid such actions during this test. On the one leg stand test, the judge found that the trooper failed to comply with NHTSA standards on said test as the trooper failed to instruct the defendant to keep his raised foot parallel to the ground. The judge then found that “a speed of 45 miles per hour in a posted 35 mile per hour zone at 1:44 in the morning with no observation of any other traffic violations, combined with a strong odor of an alcoholic beverage and red and glassy eyes, without an admission as to consumption and without any other indicia of impairment, is not adequate to establish probable cause to arrest the defendant for operating a motor vehicle under the influence of alcohol.” Based on the judge’s ruling, the municipal prosecutor dismissed the client’s OVI charges on February 26, 2013. The client pled no contest and was found guilty of the speeding violation and sentenced to a $150.00 fine plus court costs.

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