Argued and Submitted September 30, 2013
Josephine County Circuit Court. 100746M. Pat Wolke, Judge.
Elizabeth G. Daily, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew J. Lysne argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and DeVore, Judge, and Schuman, Senior Judge.[*]
[261 Or.App. 71] DEVORE, J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010(1). Defendant assigns error to the trial court's ruling admitting a deputy's testimony regarding the rate of absorption and elimination of alcohol in an individual's blood. Defendant argues that the state failed to establish the foundation needed to admit scientific evidence and that the deputy did not have the expertise to offer that evidence. The state argues that the issue was not preserved for appeal, that the deputy's expertise sufficed, and that any error was harmless. We reverse and remand.
We review rulings as to whether evidence is scientific and whether it is admissible as such for errors of law. State v. Helgeson, 220 Or.App. 285, 290, 185 P.3d 545 (2008) (citing State v. Owens, 207 Or.App. 31, 37, 139 P.3d 984 (2006), rev den, 342 Ore. at 503, 155 P.3d 874 (2007)). We also review the admissibility of expert testimony for legal error. State v. Dunning, 245 Or.App. 582, 589, 263 P.3d 372 (2011).
At 2:23 p.m. on a Friday afternoon, a United States Forest Service deputy noticed defendant and defendant's friend, Bandy, cutting firewood next to a Jeep in a public campground. Upon investigation, the deputy observed that defendant was visibly intoxicated. Defendant told the deputy that defendant had driven to the campground and had been there for only 15 minutes. The deputy noticed one beer can on the ground but did not see any others. At the scene and at trial, defendant claimed that he did not drink alcohol before driving to the campground, but, at the scene, he allowed that he had consumed four or five beers earlier in the day. Bandy told the deputy that defendant had consumed only [261 Or.App. 72] one beer since arriving at the campground. He estimated that defendant had been there for only 15 minutes. After partially completing field sobriety tests, the deputy arrested defendant for DUII and transported him to the Josephine County Jail for a breath test. That test recorded that defendant's blood alcohol content (BAC) was .17 percent at 4:03 p.m.
At trial, defendant recounted that he had been at the campground for 45 minutes or an hour and that he had consumed " four or five beers" and a couple of shots of whiskey while there. The state recalled the deputy on rebuttal to testify to the absorption and elimination of alcohol in an individual's blood and to the corresponding BAC. Defendant unsuccessfully objected to the deputy's testimony. The deputy testified to the rate of absorption for alcohol in the blood per standard alcoholic beverage ingested; the rate of elimination of alcohol in the blood over time; and the amount of alcohol defendant would have had to consume to reach a .17 percent BAC as compared to an adult of another size or sex. The deputy concluded that, in order to reach defendant's breath test results, defendant " would have had to have consumed a significant amount of alcohol, certainly more than what he's indicated * * *." The jury found defendant guilty, and the court entered a judgment of conviction.
The state argues that defendant did not properly preserve for appeal his contentions concerning whether the deputy's testimony was admissible as scientific evidence and whether the deputy was qualified to testify as an expert. " Ordinarily, this court will not consider an issue on appeal unless it was first presented to the trial court." State v. Whitmore, 257 Or.App. 664, 665, 307 P.3d 552 (2013); see also Kaptur and Kaptur, 256 Or.App. 591, 594, 302 P.3d 819 (2013); ORAP 5.45(1). At trial, a party must raise an issue 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 ...