Argued and Submitted May 29, 2013
Grant County Circuit Court. 0912308CR. W. D. Cramer, Jr, Judge.
Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Paul L. Smith, Attorney in Charge, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Justice J. Rillera, Assistant Attorney General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Wollheim, Senior Judge.[*]
[268 Or.App. 651] WOLLHEIM, S. J.
After a jury trial, defendant was convicted of driving under the influence of intoxicants. ORS 813.010(4). He appeals and assigns error to the admission of expert testimony of his probable blood alcohol concentration (BAC) at the time that he was stopped, based on a mathematical calculation called retrograde extrapolation. Defendant contends that the expert's testimony constituted scientific evidence for which the state did not provide an adequate foundation. We agree with defendant that the evidence was scientific evidence, but we reject defendant's challenges to the adequacy of the state's foundation for the admissibility of the evidence; we therefore affirm.
On November 24, 2009, at approximately 7 p.m., Trooper Timko was on patrol and observed defendant driving an automobile with a broken taillight. Timko stopped defendant and explained the reason for pulling him over. In conversing with defendant, Timko smelled a strong odor of alcohol emanating from inside the automobile and also from defendant's breath. He also observed that defendant's eyes were bloodshot and glassy and his eyelids were droopy, his face was flush, his movements were slow, and his speech was slurred.
Timko asked defendant if he had been drinking that day, and defendant acknowledged that he had consumed two beers and that he had stopped drinking about an hour before he was stopped by Timko. Timko asked and received consent from defendant to conduct, while defendant sat in the vehicle, a modified horizontal gaze nystagmus (HGN) test. After conducting the test, Timko concluded from his observations that defendant was under the influence of intoxicants.
Next, Timko asked defendant if he would be willing to perform some field sobriety tests (FSTs) outside the car and, when defendant agreed, Timko advised defendant of his
Miranda rights, then explained to defendant that he was not under arrest and did not have to answer questions if he did not want to. Timko then asked defendant some pretest medical questions, such as " Are you diabetic? Taking [268 Or.App. 652] insulin? Do you have any eye disorders, recent head traumas?" Defendant responded that he had low blood sugar and had not eaten since breakfast. At some point during the tests, defendant reiterated that he had not eaten all day and was feeling unwell, and he wanted to get something to eat before he finished the tests, but the trooper explained that he would first need to perform the tests.
Defendant performed, and failed, the HGN test, the walk-and-turn test, and the one-leg-stand test. Timko arrested defendant, transported him to the jail, and requested that he take a breath test, which defendant refused. Timko then applied for and received a search warrant to draw blood samples from defendant. A nurse took blood samples from defendant at 10:18 p.m. and 11:21 p.m. Testing of those samples indicated that defendant's BAC was 0.039 percent at 10:18 p.m. and 0.015 percent at 11:21 p.m.
Prior to trial, defendant filed a motion in limine to preclude the state from offering the testimony of Michael Dean Jackson, Ph.D., a forensic scientist employed with the Oregon State Police Forensic Services Division. Jackson's anticipated trial testimony was that, based on a mathematical process called retrograde extrapolation, he could reliably determine defendant's BAC at the time of the traffic stop. Defendant argued that Jackson's testimony would constitute scientific evidence for which the state must provide an adequate foundation under State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995), and State v. Brown, 297 Or. 404, 687 P.2d 751 (1984). Defendant further argued that the evidence would not meet those foundational requirements and, therefore, should not be admitted at trial.
The state contended that the testimony was not scientific, but nonetheless participated in an OEC 104 [268 Or.App. 653] hearing, at which Jackson testified. That testimony included Jackson's expertise and education in retrograde extrapolation; his expertise in calculating an individual's BAC at a prior point in time using the results from a later blood or breath test; his explanation that a " multitude of studies" had been conducted on retrograde extrapolation to determine what variables affected the calculation; and his opinion that the calculation of an individual's prior BAC is reliable, generally accepted, and commonly used in forensic studies, as long as certain variables are known.
The calculation, Jackson testified, was a " simple algebraic equation" that required knowledge of (1) the BAC results from an individual's blood or breath test, (2) the number of hours between the blood draw or breath test and the police stop, and (3) the rate of alcohol elimination from the person's body. Jackson further testified that he was comfortable doing the calculation if he also knew when the individual being tested had stopped drinking alcohol and whether the
individual had consumed any food with the alcohol.
After hearing the proffered evidence, the trial court ruled that Jackson's testimony constituted scientific evidence and that the state had met the foundational requirements for that evidence. The trial court denied defendant's motion in limine.
At trial, the state offered Jackson's testimony to establish defendant's BAC at the time of the police stop. Jackson was given information that defendant had stopped drinking an hour before the police stop and that he had [268 Or.App. 654] eaten little food on the day in question. He then performed the calculation by multiplying the number of hours between the stop and the blood draw--3.3 hours--with the range of elimination rates--0.010 percent to 0.025 percent. To that range of results--0.033 percent to 0.0825 percent--he then added the BAC result from the first blood draw--0.039 percent--and concluded that defendant's BAC at the time of the stop ranged between 0.072 percent and 0.121 percent.
Defendant was convicted, and, on appeal, he assigns error to the trial court's ruling denying his motion in limine allowing Jackson to testify at trial.
Our review of the trial court's admission of Jackson's testimony involves two questions: (1) was the evidence scientific, and (2) if so, was it admissible as such. State v. Sampson, 167
Or.App. 489, 495, 6 P.3d 543, rev den, 331 Or. 361, 19 P.3d 354 (2000). This court has already determined that testimony using retrograde extrapolation to determine an individual's BAC at a prior point in time is scientific evidence. State v. Whitmore, 257
Or.App. 664, 672, 307 P.3d 552 (2013). Thus, the only issue is whether Jackson's testimony was admissible scientific evidence. To answer that question, we review the facts underlying the admissibility of the proffered evidence de novo. State v. Branch, 243
Or.App. 309, 314, 259 P.3d 103, rev den, 351 Or. 216, 262 P.3d 402 (2011). The underlying facts can include the record, legal and scientific literature relating to the evidence that the parties have provided, as well as other pertinent legal and scientific literature. However, the ultimate conclusion as to whether Jackson's testimony was admissible is a question of law. Sampson, 167
Or.App. at 495. In this case, because defendant assigns error only to the trial court's ...