Argued and Submitted June 17, 2014.
Douglas County Circuit Court 12CR0137MI. George William Ambrosini, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Joanna L. Jenkins, Senior Assistant Attorney General, argued the cause for respondent. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVore, Presiding Judge, and Haselton, Chief Judge, and Garrett, Judge.
[270 Or.App. 104] GARRETT, J.
Defendant appeals a judgment convicting him of driving under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140. On appeal, defendant asserts that the trial court committed two errors. First, defendant assigns error to the trial court's admission of what defendant characterizes as expert opinion testimony regarding defendant's blood alcohol concentration (BAC) at the time that he was stopped. In his second assignment of error, defendant contends that the trial court erred in denying his motion for a judgment of acquittal on the ground that the state failed to prove venue. For the reasons set out below, we reject
defendant's evidentiary argument. As to venue, we reverse and remand for further proceedings.
An Oregon State Police trooper stopped defendant at 4:34 p.m. after observing defendant's semi-trailer truck swerving in and out of his lane on Interstate 5, nearly colliding with several cars and the guardrail. The trooper noticed that defendant's speech was slurred and difficult to understand. The trooper also noticed that defendant smelled of alcohol, that defendant's eyes were red and glassy, and that defendant had urinated on himself. Defendant consented to perform field sobriety tests, which he failed. Defendant was arrested for DUII, and transported to the Douglas County Jail. About two hours after the stop, defendant submitted to a breath test that measured his BAC at 0.15 percent, well above the threshold of 0.08 percent needed to prove the crime of DUII. ORS 813.010(1)(a). Defendant was subsequently charged with DUII, reckless driving, and two counts of recklessly endangering another person.
At trial, defendant contended that, by the time of the breath test, his BAC had significantly increased from what it was when he was stopped. Defendant testified that he ate lunch and purchased four cans of beer, which he proceeded to drink while he was driving his truck. He testified that he drank three cans between mile post 174 and the rest area located at mile post 144. Defendant testified that he stopped at the rest area to throw away the three empty cans of beer, then continued to drive until he was pulled over at [270 Or.App. 105] mile post 119. At that point, according to defendant, he had not yet begun to feel the effects of the alcohol.
To rebut defendant's contention that his BAC was lower at the time of the stop than it was two hours later, the state called Howard, a forensic scientist with the Oregon State Police Forensic Services Division, to testify about the rate at which the body absorbs and eliminates alcohol. Citing several studies, Howard prepared to testify that, in her opinion, defendant's BAC would have been greater than 0.08 percent at the time he drove his vehicle. Defendant objected on the ground that Howard's testimony was " scientific" evidence and that, under State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995), the state was required to demonstrate that that testimony was based on valid scientific principles.
Howard told the trial court that she would opine that, even giving defendant every benefit of the doubt, his BAC at the time he was stopped would have been between 0.15 and 0.12 percent. Howard based that opinion on several different studies. The first study was conducted by Rod Gullberg and Anthony McElroy, from the Washington State Patrol. Gullberg, who has a master's degree and is a trained statistician, conducted tests on 161 drivers who were arrested for DUII. Those drivers gave two breath samples: one sample immediately after being stopped and another sample approximately one hour later. The study found (1) that none of the drivers had a rising BAC one hour after being stopped, and (2) that in no instance did a breath test taken one hour later overestimate a driver's BAC at the time of the stop. The study further concluded that a breath analysis performed within two hours of a stop did not overestimate the BAC at the time of the stop. That study was published in a peer-reviewed journal. Howard testified that she was aware that " other scientists in the Oregon State Police Crime Lab System" rely on the Gullberg study, but that she did not know whether forensic scientists around the country use it as well.
[270 Or.App. 106] Although Howard testified to her belief that the Gullberg study is scientifically sound, she noted that the study did not account for several potentially relevant factors, including whether any of the drivers in the study had recently eaten a large meal, the type of alcohol they had consumed, or how quickly they had consumed it. According to Howard, all of those factors can affect how quickly alcohol is absorbed into a person's
bloodstream. Thus, Howard turned to other studies showing that even under those " different drinking scenarios," most people reach 80 percent of their peak BAC within 15 minutes of their last drink. Howard specifically cited a study in which the subjects ate a " Thanksgiving type dinner" and then drank distilled spirits. That study found that " all of the subjects still reached 80% of their peak within the first 15 minutes."  Howard relied on those studies to derive her BAC range of between 0.15 and 0.12 percent at the time defendant was stopped. She reasoned that, assuming defendant's BAC ...