Submitted January 31, 2017.
County Circuit Court CR140953 Lynn W. Hampton, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Rond Chananudech, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Christopher A. Perdue, Assistant Attorney
General, fled the brief for respondent.
DeHoog, Presiding Judge, and Egan, Judge, and Aoyagi, Judge.
Summary: Defendant appeals from a judgment of conviction
entered after a jury found him guilty on one count of driving
under the influence of intoxicants. Defendant assigns error
to the trial court's ruling that limited the testimony of
a defense expert witness-a registered nurse-about
defendant's traumatic brain injury (TBI). Defendant's
theory at trial was that the trooper that arrested him
misinterpreted defendant's TBI symptoms as signs of
intoxication. Held: The trial court erred by not
allowing defendant's expert to testify, under OEC 702,
that defendant's behavior on a video recording of the
field sobriety tests was consistent with her observations of
patients she has worked with who have TBI. The error was not
Or.App. 110] DEHOOG, P. J.
appeals from a judgment of conviction entered after a jury
found him guilty on one count of driving under the influence
of intoxicants (DUII). ORS 813.010 (2009), amended
by Or Laws 2017, ch 21, § 80. Defendant assigns
error to the trial court's ruling that limited the
testimony of a defense expert witness-a registered nurse-
about defendant's traumatic brain injury (TBI).
Defendant's theory at trial was that the trooper that
arrested him for DUII misinterpreted defendant's TBI
symptoms as signs of intoxication. We agree with defendant
that the trial court erred by not allowing his expert to
testify that, based on her experience, defendant's
behavior on a field sobriety test (FST) video was consistent
with her observations of patients she has worked with who
have TBI. Further, the error was not harmless. We reverse and
the jury found defendant guilty, we view the evidence
presented at trial in the light most favorable to the state.
State v. Park, 140 Or.App. 507, 509, 916 P.2d 334,
rev den, 323 Or. 690 (1996). In assessing whether an
erroneous evidentiary ruling was harmless, however, we
describe and review all pertinent parts of the record.
State v. Eckert, 220 Or.App. 274, 276, 185 P.3d 564,
rev den, 345 Or. 175 (2008).
receiving a complaint of poor driving, Trooper Routt of the
Oregon State Police pulled over a truck matching the
complainant's description. As Routt approached the truck,
defendant stuck his head out of the window and began talking
to the trooper. Routt noticed that defendant had a twitch on
his cheek and sweat on his face, which Routt found odd
because the temperature was a moderate 70 degrees and it was
later in the evening. Routt described defendant's
reflexes as exaggerated. Defendant was also wearing
sunglasses, despite the fact that the sun had set [289
Or.App. 111] approximately 20 minutes earlier. When the trooper
asked, defendant denied taking any medication or drugs,
drinking any alcohol, or having any medical conditions or
serious physical injuries.
noted that defendant's speech was slurred, his demeanor
was restless, he moved constantly, and he seemed irritable,
anxious, and disoriented. Defendant's pupil size appeared
normal, but his upper eyelids were droopy. After the trooper
pointed out those observations to defendant, defendant told
the trooper that he had suffered a head injury many years
asked defendant to perform voluntary FSTs, and defendant
agreed. On the horizontal gaze nystagmus test, defendant
showed no signs of impairment. On the walk and turn test,
defendant stepped out of the starting position, missed
stepping heel to toe, raised his arms for balance, and turned
incorrectly, which Routt testified suggested impairment.
Similarly, on the one-leg stand test, defendant demonstrated
an inability to follow instructions, swayed from side to
side, and raised his arms more than six inches from the side
of his body. Routt then asked defendant to perform a modified
attention test designed to test a person's internal
clock. What defendant estimated to be 30 seconds was actually
28, which was "very close, " according to the
trooper. During the test, however, Routt noticed
defendant's rigid muscle tone and tremors throughout
defendant's body. The trooper arrested defendant for
DUII. The interactions between the trooper and defendant,
including defendant's performance on the FSTs, were video
recorded and played for the jury at trial.
arresting defendant, Routt searched defendant's car. He
found a marijuana pipe. When the trooper asked defendant
about the pipe, defendant stated that he had smoked marijuana
at about 8:00 a.m. that day. Defendant later took a breath
test that indicated that there was no alcohol in his system.
Defendant declined to provide a urine sample. Routt believed