¶1concurring in part and dissenting in part.
¶2{¶ 17} I agree with the majority to the extent it holds that even where a field sobriety test is not performed in exact compliance with standardized testing procedures, an officer’s observations of the defendant are admissible not only for purposes of demonstrating probable cause, but at trial as evidence of a defendant’s intoxication. However, I continue to disagree with the majority’s conclusion that the threshold for admitting the results of the field sobriety test is strict *85compliance with standardized testing procedures and its extension of this standard to the trial setting.
¶3{¶ 18} In State v. Homan (2000), 89 Ohio St.3d 421, 430, 732 N.E.2d 952, we held that a field sobriety test must strictly comply with standardized procedures for the results to support probable cause. I dissented, arguing that field sobriety test results should be admissible for purposes of determining probable cause when the officer performs the test in substantial compliance with standardized testing procedures. I noted that administering field sobriety tests in trying environmental conditions is difficult at best. Therefore, I believed that rather than automatically rejecting test results for any deviation from standardized procedures, the better approach would be to require substantial compliance with standardized procedures and permit trial courts to determine whether the deviation prejudiced the defendant and warranted exclusion of the results. I continue to adhere to this reasoning and believe that substantial compliance should also be the test for admissibility of field sobriety test results at trial. My view in this case, as well as in Homan, is apparently shared by the General Assembly, as evidenced by its recent enactment of R.C. 4511.19(D)(4), which allows officer testimony and test results admitted in court proceedings if the prosecution can prove that the field sobriety test was conducted in substantial compliance with applicable testing standards by clear and convincing evidence. However, because R.C. 4511.19 applies prospectively only, I continue to voice my dissent.
¶4{¶ 19} Accordingly, I respectfully concur in part and dissent in part.
¶5dissents.
¶6{¶ 20} I dissent from the majority’s holding that a police officer’s observations of an incorrectly administered field sobriety test can be used as evidence against an accused. Field sobriety tests are not like breath or blood tests, where results are generated by an apparatus. The results of a field sobriety test are generated from the observations of the officer. There’s nothing fed into a computer with an objective result printed out. The results are the officer’s observations. Labeling an officer’s observations “test results” and making them inadmissible, but calling them “observations” and making them admissible, is inconsistent.
¶7{¶ 21} Of course, an officer’s observations not related to the administration of a sobriety test should be admissible. The officers in these cases, for instance, *86noted that the accuseds smelled of alcohol and exhibited glassy eyes and slurred speech. But we cannot have an officer testifying that he just happened to observe an accused’s attempt to walk heel-to-toe in a straight line, and noticed a little wobbling. Are juries to believe that an accused would voluntarily stand on one leg and count while an officer was coincidentally observing?
¶8{¶ 22} To a trier of fact, an officer’s observations will carry virtually the same weight as field sobriety test results. The majority therefore effectively guts this court’s decision in State v. Homan (2000), 89 Ohio St.3d 421, 732 N.E.2d 952.