Submitted: September 24, 2013.
Josephine County Circuit Court. 091994M. Thomas M. Hull, Judge.
Peter Gartlan, Chief Defender, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[266 Or.App. 287] SERCOMBE, J.
Following a jury trial, defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010; fourth-degree assault, ORS 163.160; second-degree criminal mischief, ORS 164.354; reckless driving, ORS 811.140; and reckless endangerment, ORS 163.195. He appeals the resultant judgment of conviction, asserting that the trial court erred in admitting testimony from an officer trained as a drug-recognition expert (DRE) in the absence of an adequate scientific foundation for that evidence. Because we conclude that the trial court did not err in admitting the officer's testimony as nonscientific expert opinion evidence, we affirm.
The relevant background facts are undisputed. Early in the evening of November 27, 2009, defendant, who was driving a car in which his girlfriend (Williams) and son were passengers, ran through a red light at an intersection in Grants Pass and collided with another vehicle carrying two people. The other vehicle was totaled as a result of the collision, and the driver of that vehicle was injured.
Burge, a Grants Pass police officer, arrived at the scene of the accident and approached defendant's vehicle. At that time, defendant, his son, and Williams were all standing outside of the vehicle. Burge observed that defendant's pupils were dilated and that he had " spider web, puffy, red, bloodshot eyes" that he associated with the use of marijuana. In addition, as Burge talked with defendant, he noticed " [t]he strong odor of alcohol" on defendant's breath. Burge asked defendant and Williams whether they had been drinking and Williams readily admitted that she had and that she had also smoked marijuana the day before. Defendant, however, did not directly respond and also refused Burge's request that he perform field sobriety tests.
Burge, who had concluded that defendant was under the influence of alcohol and marijuana, arrested defendant and placed him in the back of the patrol car. Defendant ultimately admitted to Burge that he had had " a couple [of] beers during the day and that he had smoked marijuana earlier in the day." A blood sample collected from defendant after the accident was tested by the Oregon State Police Crime Lab [266 Or.App. 288] and the results showed a blood alcohol content (BAC) of .085 percent. That sample was retested by another lab more than six months later and, at that time, showed a BAC of .074 percent. As a result of the accident, defendant was charged with DUII, fourth-degree assault, second-degree criminal mischief, reckless driving, and reckless endangerment.
Before trial, defendant moved to prohibit Burge from
" testifying, as an expert, regarding his opinion whether defendant was under the influence of a controlled substance, or any statements regarding the administration or interpretation of any * * * DRE evidence conducted in this case, because * * * Burge did not complete the DRE protocols required for the admission of such evidence."
Defendant asserted that Burge could not testify about impairment due to controlled substances because, if Burge were allowed to do
so, " he would be testifying based upon an incomplete DRE protocol."
The state responded that this was " not a DRE case." According to the state, there were " no [DRE] steps done" by the officer and it did not intend to offer DRE evidence, as such. Instead, the state took the position that the officer could describe his training and experience and offer nonscientific expert opinion testimony based on that training and experience. According to the state, the officer's conclusion, based on his observations, that defendant was impaired by drugs was " not a DRE conclusion" ; rather, it was a " conclusion that * * * any officer [could] make, whether or not he was a DRE * * * that * * * somebody who is under the influence of a controlled substance manifests these symptoms."
The court took the matter under advisement and, ultimately, issued a letter opinion setting forth its ruling:
" In this case, the state concedes that Officer Burge cannot give a DRE opinion as to the defendant's intoxication because the protocol is incomplete; and the defense grudgingly concedes that Officer Burge does not need to remain mute during the trial concerning what he saw and observed.
" This court believes that Officer Burge, like any witness, can testify about his training and experience, including all the training associated with his drug recognition [266 Or.App. 289] designation. However, the Court does not believe that he should be allowed to identify himself as a certified DRE; because he will not be rendering a DRE opinion in this case and therefore that designation is irrelevant, and could tend to overly impress the jury with the remainder of Officer Burge's testimony."
Although it determined that Burge would not be allowed to identify himself as a DRE, based on State v. Aman, 194 Or.App. 463, 95 P.3d 244 (2004), rev dismissed, 339 Or. 281, 120 P.3d 1224 (2005), and State v. Hernandez, 227 Or.App. 319, 206 P.3d 197 (2009), the court concluded that individual tests or observations that might also be components of the DRE protocol could be admissible as nonscientific ...