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State v. Beltran-Chavez

Court of Appeals of Oregon

July 6, 2017

STATE OF OREGON, Plaintiff-Respondent,

          Argued and submitted June 18, 2014

         Washington County Circuit Court D123461T Thomas W. Kohl, Judge.

          Emily 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.

          Joanna 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.

          Before DeVore, Presiding Judge, and Hadlock, Chief Judge, and Duncan, Judge pro tempore. [*]

         [286 Or.App. 591] Case Summary:

         Defendant 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.

         Conviction for driving under the infuence of intoxicants reversed and remanded; otherwise affrmed.

         [286 Or.App. 592] DUNCAN, J. pro tempore.

         In this 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 content (BAC).

         We 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.


         The 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, [1]the walk-and-turn test, and the one-leg-stand test.

         Based 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 result").

         Defendant 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.

         [286 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?
"A. Yes.
"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 August 20th?

"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 that night?
"A. Yes.
"Q. What was that opinion?
"A. That he was impaired to a noticeable and perceptible degree."

         On 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.

         The 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 BAC.

         Using 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.

         The jury convicted defendant of DUII and failure to perform the duties of a driver, and this appeal followed.


         On 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 parties' arguments.

         A. Legal Framework

         OEC 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."[2] 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 omitted).

         Eleven 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.[3] 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).[4] 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)).

         Thus, 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."[5]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)).

         Ultimately, 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 understanding."

O'Key, 321 Or at 293.

         Thus, 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").[6]

         Next, 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.

         Thus, 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.

         O'Key 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).

         Jurors 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").

         We have 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)).

         We have 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.[7]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, [8] 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.

         We 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.

         Instead, 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.

         We 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 ...

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