When facing an OVI (Operating a Vehicle while Impaired) charge in Ohio, defendants may find themselves subjected to various physical and mental tests administered by law enforcement officers. While certain tests like the Horizontal Gaze Nystagmus (HGN), Walk and Turn, and One Leg Stand are recognized as "standardized" by the National Highway Traffic Safety Administration (NHTSA) and have undergone validation studies, officers frequently employ other tests that lack this crucial standardization. One such test that has become increasingly common is the Modified Romberg Balance (MRB) test.

What is the Modified Romberg Balance Test?

The Modified Romberg Balance test is described as an assessment tool designed to evaluate divided attention and internal timing. The test typically involves having the subject stand with feet together, tilt their head back, close their eyes, and attempt to estimate the passage of a specific duration, usually 30 seconds. The subject is instructed to inform the officer when they believe the estimated time has elapsed.

During administration, the officer observes the subject's balance and records the actual time that passes until the subject signals the end of the estimation or opens their eyes, often up to a limit of 90 seconds. Officers document observations such as difficulty maintaining balance, circular sway, time estimation accuracy, and any physical tremors, particularly eyelid tremors.

Usage by Ohio Law Enforcement

Officers, including those trained as Drug Recognition Experts (DREs), frequently utilize the MRB test during OVI investigations. This test is particularly common when a breath alcohol test registers 0.00% BAC, suggesting the officer suspects drug impairment rather than alcohol. The documented observations from the test are then presented by the prosecution as evidence of impairment in court proceedings.

In cases involving suspected cannabis impairment, officers have documented observations such as balance difficulties, distinct eyelid and body tremors, circular sway, and slow time estimation during the MRB test. These anecdotal observations become part of the officer's testimony regarding impairment.

The Critical Flaw: Lack of Standardization and Scientific Validity

The most significant problem with the Modified Romberg Balance test lies in its complete lack of standardization and scientific validation. Unlike the three standardized field sobriety tests that have undergone validation studies for alcohol impairment, the MRB test has not been subjected to rigorous scientific research to establish its reliability for identifying impairment by any substance.

The absence of scientific evidence supporting the MRB test is particularly damaging given Ohio's legal requirements. Under Ohio Revised Code Section 4511.19(D)(4)(b), for field sobriety test results to be admissible in court, the prosecution must demonstrate by clear and convincing evidence that the officer administered a test that is "reliable, credible, and generally accepted" and that the officer administered it in "substantial compliance" with testing standards.

The Modified Romberg test fails to meet these statutory requirements because there is simply no scientific evidence establishing its reliability, credibility, or general acceptance as a measure of impairment. No validation studies exist demonstrating what constitutes a "clue" on this test or how performance correlates with actual impairment levels.

Administrative Compliance Issues

Beyond the fundamental lack of scientific validity, the MRB test faces additional challenges regarding proper administration. Legal challenges frequently focus on whether the test was administered in "substantial compliance" with established standards. However, since no standardized protocol exists for the MRB test, determining what constitutes proper administration becomes problematic.

Officers may claim they administered the test according to their training, but this assertion is insufficient under Ohio law. The state must demonstrate substantial compliance with actual testing standards. When specific standards for administering and scoring the MRB test cannot be clearly established, or when evidence shows the officer deviated from proper procedure, the test results may be deemed inadmissible.

Particular Problems in Cannabis Impairment Cases

The use of the MRB test becomes especially questionable in cases involving suspected cannabis impairment. There is a complete absence of scientific evidence linking performance on the Modified Romberg test to marijuana impairment specifically. While officers may document observations like balance difficulties and tremors during suspected cannabis cases, these observations are not supported by validated research establishing them as reliable indicators of marijuana impairment.

Cannabis impairment presents unique challenges that make reliance on non-standardized tests particularly problematic. THC levels in blood decline rapidly after consumption, yet blood and urine tests may detect cannabis use long after acute effects have dissipated. This temporal disconnect makes the interpretation of behavioral tests complex and unreliable, especially when those tests lack scientific validation for cannabis impairment detection.

Legal Challenges and Defense Strategies

The questionable nature of the Modified Romberg Balance test creates significant opportunities for defense challenges. When the MRB test serves as a basis for arrest or supports an officer's opinion of impairment, the results and observations are subject to challenge through motions to suppress evidence.

Successful exclusion of MRB test evidence can substantially weaken the prosecution's case by removing what they may consider crucial evidence of impairment. Since the test is not standardized or recognized as reliable by NHTSA, arguments for its exclusion have strong legal foundations.

Defense attorneys should thoroughly investigate how the MRB test was administered, research legal precedents challenging its reliability, and file appropriate motions to exclude this evidence from trial. The lack of standardization and scientific validation provides multiple avenues for challenge.

The Bottom Line

The Modified Romberg Balance test represents a concerning trend in OVI enforcement where non-standardized, scientifically unvalidated tests are used to support impairment charges. Unlike the three standardized field sobriety tests that have undergone rigorous validation studies, the MRB test lacks any scientific foundation establishing its reliability for detecting impairment.

For individuals facing Ohio OVI charges where the Modified Romberg test was administered, understanding that this test is highly vulnerable to legal challenge is crucial. The validity and administration of all field sobriety tests should be closely examined as part of a comprehensive defense strategy.

The prosecution's reliance on non-standardized tests like the MRB reveals the weakness of their evidence and provides experienced defense attorneys with powerful tools to challenge the validity of the charges. When the state attempts to use scientifically unproven methods to establish impairment, vigorous legal challenges become not just appropriate, but necessary to protect defendants' rights.

Ohio DUI Attorneys