Submitted September 30, 2014.
120850169. Multnomah County Circuit Court. John A. Wittmayer, Judge.
Peter Gartlan, Chief Defender, and Alice Newlin-Cushing, 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 DeVore, Judge, and Garrett, Judge.
[271 Or.App. 786] DEVORE, J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010(1), and reckless driving, ORS 811.140. We reject, without further discussion, defendant's first and second assignments of error in which he challenges the trial court's denial of his motion for a judgment of acquittal. In his third assignment of error, defendant challenges the admission of an expert's testimony regarding retrograde extrapolation to determine blood-alcohol content (BAC) at the time of driving. He contends that retrograde extrapolation should be inadmissible because it is not scientifically reliable and that, even if the evidence might be admissible in some cases, the state did not establish an adequate foundation for use of the evidence. " We review rulings as to whether evidence is scientific and whether it is admissible as such for errors of law." State v. Ohotto, 261 Or.App. 70, 71, 323 P.3d 306 (2014). We review the facts underlying the admissibility of scientific 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). We affirm.
The facts are undisputed. At around 9:00 a.m. on August 26, 2012, a security officer noticed defendant wandering around a Portland SmartPark garage. Between 9:50 and 10:00 a.m., a garage employee saw defendant on foot, and, soon thereafter, he saw defendant's red car come down the ramp, pull up to the exit gate arm, pause for a few seconds, and quickly reverse back up the ramp in the wrong direction. Defendant's car smashed into an unused pay booth. Defendant turned his car around and drove up into [271 Or.App. 787] the garage. When the police and security officers searched the garage, defendant was nowhere to be found.
Later that day, the security officer saw defendant walking outside the garage. The security officer summoned Officer Payton. Payton noticed that defendant was slightly swaying, smelled of alcohol, and had watery, bloodshot eyes. Defendant told Payton that he had backed into the pay booth, he had seen someone running after his car, he had not stopped, he had assumed that the police were called, and he had walked down the garage stairs to calm down.
Payton arrested defendant and took him to the police station, where he failed four of six field sobriety tests. Defendant said that he had had " four or five [drinks] at the bar" but had stopped drinking at 2 a.m. that morning. About two and one-half hours after the garage incident, an Intoxilyzer test at 12:36 p.m. revealed defendant's BAC to be 0.06 percent. Defendant was charged with one count of DUII, three counts of failure to perform duties of a driver when property is damaged, and one count of reckless driving.
At trial, the state sought to offer the testimony of a forensic scientist from the Oregon State Police Crime Lab, relating to defendant's intoxication. During an evidentiary hearing under OEC 104, the expert, Bessett, described his training in the field, his college degree in biology, his professional training programs, and twelve years of professional experience working in toxicology. ORS 40.030(1) (OEC 104) (preliminary questions concerning the qualification of a person to be a witness).
Bessett testified that in order to perform a " retrograde extrapolation" --to " estimate a person's BAC at a previous time" --he needed a time of the breath or blood test, a time that the drinking began, and a time of the " incident or the time of where you want the retrograde extrapolation to be."  He explained that retrograde extrapolation should be given as " a range," because the unrealistic certainty of [271 Or.App. 788] a " specific point" would risk an incorrect result or a high failure rate. When asked whether the technique of retrograde extrapolation is accepted in forensic science, Bessett testified:
" Yes. As long as the person is qualified, trained and the person does not give the retrograde extrapolation to an exact result, meaning that I cannot say with a 100 percent certainty that somebody who blew a .06, let's say, at 3:00 a.m., that they were--they had to be a .15 at 9:00 p.m. That's unscientific because there's a lot of variables.
" Each person is different. People's livers work at different rates. A person's liver even works at different rates on different evenings. So * * * what is known * * * through the peer-reviewed published studies is that the liver works in a range, meaning most, almost all people, drinkers that is, will eliminate alcohol between a .01 percent per hour and a .025 percent per hour.
" * * * * *
" [T]hese are normal drinkers, not children, and these are not people with excessively high BACs, let's say of a .3, .4, .5 or higher. People who reach that amount, that high of a BAC, are probably two things, chronic alcoholics or that they binge drink, and when * * * you reach that high of a BAC your liver can work much faster than that .025 range, can be at .03, .04, .05.
" So I used a .01 to .025 for the majority or vast majority of people except for those excessively high BACs or chronic alcoholics that are up there quite often."
When asked whether the analysis has a high failure rate, Bessett explained,
" If a person has enough information and gives a range, * * * I can be really confident that the person fits somewhere in that range based on peer-reviewed published material.
" * * * * *
" I try to limit the error by giving a large range and factoring in as much as I can and having known values."
Bessett reiterated that " people absorb alcohol differently," resulting in a range of possible BAC values that could have existed " ...