Argued and submitted on December 28, 2012.
Lane County Circuit Court 211008576, Jack A. Billings, Judge.
Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael A. Casper, Deputy Solicitor General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010(1). Defendant contends that the trial court erred when it admitted expert testimony by a forensic scientist regarding the rates at which the blood absorbs and eliminates alcohol without the foundational showing of scientific validity required by State v. Brown, 297 Or 404, 687 P.2d 751 (1984), and State v. O'Key, 321 Or 285, 899 P.2d 663 (1995). The state argues that no such foundation was required in this case and that, regardless, any error was harmless. We review for errors of law. State v. Bevan, 235 Or.App. 533, 535, 233 P.3d 819 (2010). We conclude that the testimony should not have been admitted and that the error was not harmless. We therefore reverse and remand.
The relevant facts are not in dispute. Defendant and his girlfriend, Beechinor, attended a small gathering at a friend's house on the evening of March 17, 2010, arriving at approximately 9:00 or 9:30 p.m. Defendant and Beechinor testified that defendant drank three beers over the course of the evening, before leaving with Beechinor at about 2:30 or 2:45 a.m. on the morning of March 18. They drove a friend home, after which they stopped at a restaurant to buy some food, and then began to drive to defendant's house. Lane County Deputy Sheriff Schenfeld stopped defendant for speeding at 3:20 a.m. Schenfeld smelled a moderate odor of alcohol when he approached the driver's side of defendant's vehicle. Schenfeld also noted that defendant's eyes were bloodshot and watery and that his speech was a little bit thick and slightly slurred. Schenfeld administered four field sobriety tests. Defendant failed three. Schenfeld arrested defendant for DUII and transported him to the Lane County jail. Defendant submitted to a breath test that indicated that his blood alcohol content (BAC) at 4:15 a.m. was 0.08 percent. Defendant was charged by a one-count information with misdemeanor DUII based on an allegation that he "did unlawfully drive a motor vehicle on a public highway * * * while under the influence of intoxicants, to-wit: intoxicating liquor[.]"
At trial, the state presented the expert testimony of Bray, a forensic scientist from the Oregon State Police Forensic Division. Bray testified about studies concerning the rates at which the blood absorbs and eliminates alcohol, telling the jury that an individual's BAC generally peaks within 30 to 60 minutes after consuming the final drink. Bray also offered testimony regarding the use of the "Widmark formula" to calculate the number of alcoholic beverages consumed by an individual based on their BAC, a process known as "retrograde extrapolation." Based on that information, Bray testified that a male weighing 185 pounds who drank between 9:00 p.m. and 1:00 a.m., would have had to consume between 7 and 10.5 drinks to have a BAC of 0.08 percent at 4:00 a.m.
We begin by determining whether defendant preserved the claimed error concerning the admission of Bray's expert testimony; the state contends that he did not do so. Ordinarily, this court will not consider an issue on appeal unless it was first presented to the trial court. Kaptur and Kaptur, 256 Or.App. 591, 594, __ P.3d __(2013); ORAP 5.45(1). The determination whether a particular issue was preserved for appeal is a practical one and depends on whether the policies behind the preservation requirement are met in an individual case. Kaptur, 256 Or.App. at 594 (citing Charles v. Palomo, 347 Or 695, 700, 227 P.3d 737 (2010)). The purpose of the requirement is "to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument." Taylor v. Ramsay-Gerding Construction Co., 233 Or.App. 272, 283, 226 P.3d 45, adh'd to as modified on recons, 235 Or.App. 524, 234 P.3d 129 (2010) (internal quotation marks omitted). We will thus review an issue advanced by a party on appeal as long as that party "raised the issue below with enough particularity to assure that the trial court was able to identify its alleged error so as to consider and correct the error immediately, if correction is warranted." Kaptur, 256 Or.App. at 594 (internal quotation marks omitted). We conclude that defendant did so here.
Defendant filed a motion in limine to exclude evidence of retrograde extrapolation without the proper foundation for scientific evidence. In that motion, defendant argued that the anticipated expert testimony "relating the results of the breath test to the time of driving" was based on an "analytical approach * * * known as retrograde extrapolation and is not considered to be reliable or generally accepted by a consensus of scientists competent in forensic alcohol analysis." In support of that argument, defendant cited to several journal articles and multiple appellate court opinions from other states that purportedly considered and rejected retrograde extrapolation as unreliable. Defendant expressly requested that the trial court "require the Prosecution to provide a BROWN/O'KEY * * * foundation prior to the admissibility of any evidence relating to retrograde extrapolation." At pretrial proceedings, defendant reiterated the substance of that motion, stating:
"[The prosecutor] intends to offer opinion evidence by a person regarding dissipation rates, comparisons with body weight, you know, how much a person would have to drink, absorbed dissipation, Widmark, all those things. Again, that's opinion evidence. * * * And to the gist of the memorandum in support of the motion, it's not peer reviewed. Doesn't meet the scientific foundation under O'Key and Brown."
The trial court responded:
"* * * I'm going to allow--assuming that this officer comes in and lays out a foundation that--that seems to me to be sufficient ...