and submitted June 18, 2014
County Circuit Court D123461T Thomas W. Kohl, Judge.
P. Seltzer, Deputy Public Defender, argued the cause for
appellant. With her on the briefs was Peter Gartlan, Chief
Defender, Offce of Public Defense Services.
L. Jenkins, Assistant Attorney General, argued the cause for
respondent. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
DeVore, Presiding Judge, and Hadlock, Chief Judge, and
Duncan, Judge pro tempore. [*]
Or.App. 591] Case Summary:
appeals a judgment convicting him of driving under the
infuence of intoxicants and failing to perform the duties of
a driver, assigning error to the trial court's denial of
his pretrial motion to prohibit the arresting deputy's
testimony that defendant "passed" or
"failed" two feld sobriety tests, the walkandturn
test and the onelegstand test. Defendant argues that that
testimony is scientifc because it draws its convincing force
from a scientifc proposition, namely, that exhibiting a
certain number of standardized "clues" during
performance of the test means that the test subject is under
the infu-ence of intoxicants. Held: When an offcer
testifes that a defendant "failed" the walkandturn
test or the onelegstand test, that testimony relies on an
external scoring rubric to prove that the defendant was
objectively, measurably impaired. The proposition underlying
that testimony is that the test is able to measure impairment
objectively and that a specifc numerical score is correlated
with impairment. That proposition is grounded in scientifc
research. Moreover, that proposition is distinct from, and
cannot be derived from, commonly recognized signs of
impairment or the more detailed understanding of signs of
impairment that an offcer obtains from his or her specialized
training and experience. The only way to create an accurate
numerical scoring system for measuring impairment objectively
is to conduct scientifc research and testing. Where, as here,
there is no reasonable way for the proposition to have been
derived other than through application of a scientifc method
to collected data, the jury will perceive the proposition to
be based on science. Accordingly, the state had to establish
that alcohol impairment is reliably measured through the
walkandturn and one-legstand tests before introducing
testimony that defendant "failed" the tests to
prove that he was impaired. Because the state did not attempt
to lay a Brown/ O'Key foundation for the testimony and
the erroneous admission of the testimony was not harmless,
defendant's conviction is reversed and the case is
remanded for further proceedings.
for driving under the infuence of intoxicants reversed and
remanded; otherwise affrmed.
Or.App. 592] DUNCAN, J. pro tempore.
criminal case, defendant appeals a judgment convicting him of
driving under the influence of intoxicants (DUII), ORS
813.010, and failing to perform the duties of a driver, ORS
811.700. Defendant assigns error to the trial court's
denial of his pretrial motion to prohibit the arresting
deputy's testimony that defendant "passed" or
"failed" certain field sobriety tests (FSTs).
Defendant argues that that testimony is scientific because it
draws its convincing force from a scientific proposition,
namely, that exhibiting a certain number of standardized
"clues" during performance of the test means that
the test subject is under the influence of intoxicants.
Defendant also assigns error to the trial court's denial
of his request for a special jury instruction regarding the
results of a breath test to determine his blood alcohol
conclude that the deputy's testimony at issue here is
scientific and, consequently, that the trial court erred in
denying defendant's motion and admitting the testimony
without a proper foundation, and we further conclude that the
error was not harmless. Therefore, we reverse and remand
defendant's DUII conviction, and, because the record may
develop differently on remand, we do not address
defendant's assignment of error regarding the denial of
his request for a special jury instruction. Because
defendant's arguments on appeal pertain only to his DUII
conviction, we affirm his conviction for failing to perform
the duties of a driver.
HISTORICAL AND PROCEDURAL FACTS
pertinent facts are not in dispute. While driving out of a
parking lot, defendant struck another car and failed to
immediately stop. Defendant eventually pulled into a
different parking lot, where witnesses to the collision
confronted him. Shortly thereafter, Deputy Duenas arrived and
spoke with defendant. Duenas noticed that defendant was a
little "standoffish" and did not seem to want him
there. Duenas also noticed that defendant had bloodshot,
watery eyes and a "relaxed" look on his face.
Duenas smelled a moderate odor of alcohol on defendant.
Duenas asked defendant [286 Or.App. 593] if he had been
drinking, and defendant answered that he had had two bottles
of beer one hour before. Duenas asked defendant to perform
FSTs, and defendant agreed. Duenas administered the
horizontal gaze nystagmus (HGN) test, the walk-and-turn
test, and the one-leg-stand test.
on Duenas's observations and defendant's performance
on the FSTs, Duenas arrested defendant and transported him to
the police station. At the station, Duenas tested
defendant's breath with the Intoxilyzer 8000, which
requires two successful breath samples to provide a final
test result. See OAR 257-030-0130(3). Defendant gave
two breath samples indicating that his BAC was 0.082 and
0.079, respectively. The final result of defendant's
breath test was a 0.07 BAC, which is the lower sample
truncated to two decimal places. See OAR
257-030-0140 (after a successful breath testing sequence,
"the lower breath sample measurement shall be truncated
to two decimal places and reported as the chemical test
was charged with DUII and failure to perform the duties of a
driver. Before trial, defendant moved to prohibit Duenas from
testifying that defendant had "passed" or
"failed" the walk-and-turn or one-leg-stand tests
because those terms are scientific; they derive from a
purported statistical correlation between exhibiting a
certain number of clues on the test and having a high BAC.
Defendant argued that "applying that 'pass or
fail' [to a person's performance on those FSTs] puts
a scientific backing that doesn't exist and isn't
tested." He asserted that Duenas could testify that
defendant exhibited "six out of eight clues or eight out
of eight clues [on a given test], but just not use the term,
'pass' or 'fail.'" The state responded
that "the officers can testify as to whether he passed
or failed [, ]" because FSTs are "standardized
test[s]." The trial court denied defendant's request
and allowed the state to introduce Duenas's testimony
about whether defendant passed or failed the FSTs without
laying a scientific foundation for that testimony.
Or.App. 594] At trial, Duenas testified about defendant's
performance on the FSTs. Specifically, he testified that
defendant had exhibited four of eight possible
"clues" on the walk-and-turn test: (1) He started
before Duenas told him to; (2) he was unable to maintain his
balance while Duenas gave him instructions; (3) he took eight
steps before turning, instead of the required nine steps; and
(4) he made an improper turn. In addition to describing those
problems with defendant's performance, Duenas testified
that that score meant that defendant had failed the test:
"Q. *** You testified that [defendant] showed four out
of eight clues on the walk and turn?
"Q. Is that a passing or failing score?
"A. Fail." Later, Duenas testified to his opinion
that defendant was impaired when he drove:
"Q. About how long were you with the defendant back on
"A. Almost two hours, maybe?
"Q. Now based on your training and experience and your
contact with the defendant that night, were you able to form
an opinion as to the state of the defendant's sobriety
"Q. What was that opinion?
"A. That he was impaired to a noticeable and perceptible
cross-examination, Duenas testified that defendant's
motor skills did not appear to be impaired, defendant's
balance was intact, his speech was normal, and he behaved
politely. Additionally, Duenas admitted that, although
defendant started the walk-and-turn test before Duenas told
him to, Duenas had not instructed defendant to wait for his
command before starting the test. Defense [286 Or.App. 595]
counsel also elicited Duenas's testimony that defendant
had passed the one-leg-stand test.
state also introduced defendant's "Breath Test
Report." The one-page report included two "subject
samples"- a 0.082 BAC and a 0.079 BAC-and a "Test
Result" of 0.07 BAC. Duenas testified about
defendant's two breath samples, and, when asked what the
final result was, Duenas stated that "[t]he test result
was a .07 percent BAC." Similarly, on cross-examination,
Duenas testified that neither of the "subject
samples" was official and that, instead, the 0.07
"Test Result" represented defendant's official
retrograde extrapolation, the state's forensic expert,
Bessett, estimated defendant's BAC at the time of
driving. Bessett based his calculations off of the
"subject samples" rather than the "Test
Result." According to Bessett, on the lower range,
defendant's BAC at the time of driving was the same as
the "subject samples, " and on the higher end, it
was 0.01 more than those samples.
jury convicted defendant of DUII and failure to perform the
duties of a driver, and this appeal followed.
appeal, defendant asserts that the trial court erred in
denying his pretrial motion to exclude testimony that he
"passed" or "failed" the walk-and-turn or
one-leg-stand tests because that testimony was scientific and
the state did not lay an adequate foundation for it. We begin
by explaining the governing law, then we turn to the
702, which governs the admission of expert testimony,
provides, "If scientific, technical or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training or
education may testify thereto in the form of an opinion or
otherwise." In State v. Brown, 297 Or. 404,
408, 687 P.2d 751 (1984), the Supreme Court concluded that
expert scientific evidence is best evaluated under
traditional admissibility [286 Or.App. 596] standards for
expert testimony under OEC 702. Those standards require
expert testimony to be "relevant under OEC 401 and
[helpful to] the trier of fact in deciding a disputed
issue." Id. at 409. Expert testimony is helpful
if its subject is "within the expert's field, "
the witness is qualified, and the foundation for the opinion
intelligibly relates the testimony to the facts. Id.
Finally, the trial court must consider whether the testimony
"is unduly prejudicial, repetitive, or falls under some
other exclusionary provision" of OEC 403. Id.
The court held that, "[i]n determining whether
scientific evidence is probative under OEC 401 and the
relevancy and prejudice analysis implicated in OEC 7O2's
helpfulness standard, " seven factors "provide
structure and guidance in applying those rules of
evidence." Id. at 417. The factors, which are
not exclusive, are intended to assist a court in performing
its "vital role of gatekeeper, screening proffered
scientific testimony to determine whether it is sufficiently
valid, as a matter of science, to legitimately assist the
trier of fact and excluding bad science in order to control
the flow of confusing, misleading, erroneous, prejudicial, or
useless information to the trier of fact." Marcum v.
Adventist Health System/West, 345 Or. 237, 244, 193 P.3d
1 (2008) (internal citations, brackets, and quotation marks
years later, in State v. O'Key, 321 Or. 285, 899
P.2d 663 (1995), the Supreme Court again addressed the
admissibility of expert scientific evidence and refined the
requirements articulated in Brown for a sufficient
foundation for such evidence. In Brown, the court had
defined [286 Or.App. 597] scientific evidence as evidence
that "draws its convincing force from some principle of
science, mathematics and the like." 297 Or at 407. In
O'Key, with respect to whether evidence is
scientific, the court noted that "[t]his court's
definition of 'scientific' evidence in Brown
recognizes that it is difficult to set a more definitive
boundary between 'scientific' evidence and
'technical or other specialized knowledge, ' which
are the other types of evidence requiring expert proof."
321 Or at 291 (quoting OEC 702). The court quoted Professors
Mueller and Kirkpatrick, who explained that "'[m]ost
expert testimony rests at least partly on science. In many
areas the scientific underpinning is well established and the
criteria set out in [Rules] 702 and 703 work well. * * *
Under these criteria an enormous amount of conventional
scientific evidence is routinely admitted.'"
Id. (quoting Christopher B. Mueller & Laird C.
Kirkpatrick, Modern Evidence § 7.8, 990 (1995)
(second insertion in O'Key)).
in O'Key, the court recognized that there may be
no definitive boundary between expert scientific evidence and
expert evidence based on "technical or other specialized
knowledge"-that is, as Mueller and Kirkpatrick contend,
"[m]ost expert testimony rests at least partly on
science."321 Or at 291 (internal quotation marks
omitted). In light of that recognition, the court identified
the particular risk carried by the admission of expert
evidence that the jury will perceive as scientific:
"Evidence perceived by lay jurors to be scientific in
nature possesses an unusually high degree [286 Or.App. 598]
of persuasive power. The function of the court is to ensure
that the persuasive appeal is legitimate." Id.
(footnote omitted). Accordingly, "[propositions that a
court finds possess significantly increased potential to
influence the trier of fact as scientific assertions * * *
should be supported by the appropriate scientific
validation." Id. (citing William Strong,
Language and Logic in Expert Testimony: Limiting Expert
Testimony by Restrictions of Function, Reliability, and
Form, 71 Or L Rev 349, 368 (1992)).
in O'Key, the court explained that there was no
present need to attempt to draw a firm line between expert
scientific testimony and expert testimony based on
"technical or other specialized knowledge":
"We need not attempt precisely to distinguish
'scientific' from other types of expert testimony
under the Oregon Evidence Code. For now, we hold that, in the
absence of a clear case, a case for judicial notice, or a
case of prima facie legislative recognition, trial
courts have an obligation to ensure that proffered expert
scientific testimony that a court finds possesses
significantly increased potential to influence the trier of
fact as 'scientific' assertions is scientifically
valid. This is especially true in cases where the proffered
expert scientific testimony is innovative, nontra-ditional,
unconventional, controversial, or close to the frontier of
O'Key, 321 Or at 293.
when proffered expert scientific testimony "possesses a
significantly increased potential to influence the trier of
fact as 'scientific, '" a court must determine
whether the evidence is sufficiently reliable to be admitted,
applying the guidelines established in Brown and
O'Key. The court's assessment of the
reliability of the evidence is necessary to "'ensure
 that expert testimony does not enjoy the persuasive appeal
of science without subjecting its propositions to the
verification processes of science.'"
O'Key, 321 Or at 292 (quoting Strong, 71 Or L
Rev at 368); see also Christopher B. Mueller &
Laird C. Kirkpatrick, 3 Federal Evidence § 353,
656 (2d ed 1995) (noting that most expert testimony is based
on science and explaining that, "[i]n cases involving
scientific evidence, especially where the science is new or
controversial or close to the frontier of understanding, the
[286 Or.App. 599] proponent must show that the proffered
evidence is valid science").
the O'Key court evaluated the expert testimony
at issue-testimony about the HGN test-and concluded that the
jury would perceive it as scientific. The court noted that
"the HGN test is distinguished from other field sobriety
tests because science, rather than common knowledge, provides
the legitimacy for HGN testing." 321 Or at 296. After
discussing the "asserted scientific proposition"
underlying the HGN test ("that there is a causal
relationship between consumption of alcohol and the type of
nystagmus measured by the HGN test"), the court
explained that the HGN test "rests on a manifestation of
alcohol consumption not easily recognized or understood by
most people. The relationship between the effects of alcohol
on the central nervous system, the nystagmus phenomenon, and
the HGN test is not within the realm of common knowledge of
the average person." Id. at 296-97.
the court concluded that the jury would perceive HGN-test
evidence as scientific because, unlike many other signs of
alcohol consumption, the causal relationship [286 Or.App.
600] between alcohol consumption and the nystagmus phenomenon
was outside jurors' common knowledge. Consequently, that
"asserted scientific proposition" implied by the
testimony had significantly increased potential to influence
the jury as a "scientific" assertion.
demonstrates that attributes of a particular proposition
implied by an expert's testimony-its scientific
underpinning, coupled with its unfamiliarity to the jury- may
cause the jury to perceive the proposition, and,
consequently, the testimony, as scientific. See also
Jennings v. Baxter Healthcare Corp., 331 Or. 285, 304,
14 P.3d 596 (2000) ("[c]linical diagnoses bear the marks
of science" because doctors use the scientific method to
arrive at diagnoses); State v. Milbradt, 305 Or.
621, 631, 756 P.2d 620 (1988) (testimony about sex abuse
"syndrome" that explains "'typical'
reactions" of abuse victims is scientific).
also may perceive expert testimony as scientific because of
attributes of the expert, rather than the particular explicit
or implicit proposition that the expert relies on; through
her overall presentation, an expert may "announce  to
the factfinder that her testimony is 'scientific,
i.e., is grounded on conclusions that have been
reached through application of a scientific method to
collected data.'" State v. Marrington, 335
Or. 555, 563, 73 P.3d 911 (2003). In Marrington, the
defendant argued that a witness's assertion "that
delayed reporting is a predominant feature of disclosure in
otherwise verified cases of child sexual abuse" was
scientific. 335 Or at 560. The court first noted that
"expert testimony concerning matters within the sphere
of the behavioral sciences possesses the increased potential
to influence the trier of fact as scientific assertions, just
as expert testimony dealing with the 'hard' sciences
does." Id. at 561. Then the court noted that
the expert had testified that she had degrees in behavioral
science and extensive experience in the field of child abuse
and was familiar with research and literature in the field.
Moreover, her testimony implied that "there is a
well-defined, empirically verified, set of characteristics
that a significant percentage of sexually abused children
display." Id. at 563. She also used "the
vocabulary of scientific research." Id.
Finally, the court held that an expert "who has a
background in behavioral sciences [286 Or.App. 601] and who
claims that her knowledge is based on studies, research, and
the literature in the field, announces to the factfinder that
the basis of her testimony is 'scientific, '
i.e., is grounded on conclusions that have been
reached through application of a scientific method to
collected data." Id. at 563-64; see also
State v. Perry, 347 Or. 110, 120, 218 P.3d 95 (2009)
(where expert, like expert in Marrington, "was
presenting herself as an expert in her field whose knowledge
was based, at least in part, on studies, research, and
scientific literature, " "her testimony regarding
delayed disclosure is scientific evidence").
employed both of those methods of evaluating whether a jury
will perceive evidence as "scientific." See,
e.g., State v. Dulfu, 282 Or.App. 209, 215-216, 386 P.3d
85 (2016), rev allowed, 361 Or. 100 (2017) (expert
testimony was scientific because, as in Marrington
and Perry, proponent "tied [the expert's]
ability to opine on possible motivations for possessing child
pornography to his professional background and experience as
a scientist"); State v. Branch, 243 Or.App.
309, 315, 259 P.3d 103, rev den, 351 Or. 216 (2011)
(evidence of distance derived from lidar device "is
based on the premise that measurements of distance can be
derived through the lidar device's use of a certain
scientific principle, viz., the speed of
light"; accordingly, the evidence "draws its
convincing force from a scientific principle and would be
more persuasive to the trier of fact due to its scientific
nature"); State v. Sampson, 167 Or.App. 489,
496-97, 6 P.3d 543, rev den, 331 Or. 361 (2000)
(persuasive force of drug recognition expert protocol
"emanates predominantly from the substance and
the aura of the scientific principles on which its
methodology is based" (emphasis in original)).
also distinguished opinion evidence that is based exclusively
on an expert's training and experience from scientific
evidence. We explained that distinction in State v.
Rambo, 250 Or.App. 186, 279 P.3d 361 (2012), rev
den, 353 Or. 203 (2013). There, the defendant was
charged with driving under the influence of a controlled
substance and sought exclusion of an officer's opinion
that she was under the influence of a controlled substance
based on her performance during some components of a drug
recognition expert (DRE) protocol that the officer had
administered, [286 Or.App. 602] contending that the opinion
testimony was scientific evidence for which the state had to
lay a proper foundation.250 Or.App. at 187. The trial court
allowed the officer to testify to that opinion based on
certain components of the DRE protocol, specifically, the
defendant's BAC, her statements, the HGN test, her
performance on FSTs,  her general pupil size, and needle
injection sites on her body. Id. at 189. The trial
court excluded evidence based on the defendant's pulse
rate, temperature, measurement of her pupils after a
"dark room test, " and muscle examination,
concluding that evidence about those things would suggest a
scientific basis for the officer's opinion. Id.
The defendant appealed, reprising her argument made before
the trial court. Id. at 190.
concluded that "the trial court properly admitted the
challenged testimony as nonscientific expert opinion
evidence." Id. at 192. We first explained that
the defendant "does not challenge the admissibility of
any of the underlying evidence upon which [the officer] based
his ultimate [286 Or.App. 603] opinion." Id.
That is, the defendant "implicitly acknowledge [d]"
that the HGN and blood-alcohol-test evidence was admissible
scientific evidence and that evidence of the defendant's
statements made during an interview and her performance on
the FSTs was independently admissible. Id.
the defendant's only challenge was to "the
admissibility of [the officer's] opinion, based on that
underlying evidence, that defendant drove under the influence
of a narcotic analgesic." Id. The defendant
argued that, because that opinion was based, in part, on
scientific tests (the HGN test and the blood alcohol test)
and couched in terms of the officer's investigative
accuracy rate, the jury would perceive that his opinion
itself was scientific. Id. at 193.
rejected the defendant's argument, explaining that
officers who have training and experience in recognizing
signs of impairment can testify to their expert opinions of
intoxication without first ...