and Submitted September 6, 2016
Resubmitted en banc November 20, 2017.
County Circuit Court 14CR1014; A158196, Richard L. Barron,
P. Seltzer, Deputy Public Defender, argued the cause for
appellant. With her on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
L. Jenkins, Assistant Attorney General, argued the cause for
respondent. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Egan, Chief Judge, and Armstrong, Ortega, Hadlock, DeVore,
Lagesen, Tookey, Garrett, DeHoog, Shorr, James, and Powers,
Judges, and Sercombe, Senior Judge.
Summary: Defendant appeals a judgment convicting him of
driving under the influence of intoxicants (DUII). ORS
813.010. He assigns error to the trial court's denial of
his motion for judgment of acquittal. Specifically, defendant
argues that, based on the evidence presented at trial, no
fact finder could have found beyond a reasonable doubt that
his blood alcohol content (BAC) was at least .08 percent when
he was riding his motorcycle. Held: The trial court
erred. The fact that alcohol dissipates from the body over
time is common knowledge. Notwithstanding that fact, in this
case, no fact finder could have reasonably inferred that
defendant's BAC was at least .08 percent at the time he
was driving [290 Or.App. 400] where the state only presented
evidence that defendant's BAC was .09 percent
approximately one hour and 45 minutes after he was driving
and that defendant had not consumed any additional alcohol
during that time period. Without expert testimony or other
admissible evidence, the fact finder was left to speculate
regarding defendant's BAC at the time of driving.
Or.App. 401] En Banc
appeals a judgment convicting him of driving under the
influence of intoxicants (DUII). ORS 813.010.In his second
assignment of error, defendant argues that the trial court
erred when it denied his motion for judgment of acquittal.
Specifically, defendant argues that, based on the evidence
presented at trial, no factfinder could have found beyond a
reasonable doubt that defendant's blood alcohol content
(BAC) was .08 percent or higher when he was riding or
"driving" his motorcycle. On appeal, we conclude
that, even though the fact that alcohol in the blood
dissipates over time is common knowledge, that knowledge
combined with the minimal evidence presented at trial in this
case is not sufficient for a reasonable factfinder to find
beyond a reasonable doubt that defendant's BAC was above
.08 percent at the time he was driving. Accordingly, we
relevant facts are few and undisputed. Oregon State Police
Trooper Dunlap stopped defendant for riding his motorcycle
without a helmet. Following that stop, Dunlap took defendant
into custody for DUII and brought defendant to the North Bend
Police Department for a blood alcohol test using an
Intoxilyzer. That test began approximately one hour and 45
minutes after defendant was initially stopped. The test
indicated that defendant's BAC was .09 percent. Between
the time that defendant was stopped and the time that his BAC
was tested, Dunlap did not observe defendant consume any
was charged by information with DUII. A short bench trial was
held in which the state relied solely on a per se
theory of intoxication-i.e., that defendant was
legally intoxicated under the relevant statute because he
[290 Or.App. 402] had a .08 percent or higher BAC when he was
riding his motorcycle. ORS 813.010(1)(a).
defendant's closing argument, he argued that the trial
court could not convict him because the state's evidence
was legally insufficient to prove that he was intoxicated in
violation of ORS 813.010(1)(a) at the time that he was
riding. Specifically, defendant noted that the only proof
offered by the state was that defendant's BAC was .09
percent when measured one hour and 45 minutes after he had
been driving and that defendant had not consumed any alcohol
during that time. Defendant argued that there was no basis
for a factfinder to determine, without further evidence,
whether defendant had a .08 percent or higher BAC at the time
that he was driving. The trial court, acting as a factfinder,
rejected defendant's argument and convicted defendant,
"Well, in this case, I will find [defendant] guilty
because the only evidence before me is what he blew, and I
don't have evidence at all that suggests one way or the
other what you do with * * * that to equate it with time of
driving. But that's the evidence I have.
"So, I'll find him guilty of that." Defendant
noted, on appeal defendant argues that the trial court erred
in denying his motion for judgment of acquittal because no
factfinder could infer beyond a reasonable doubt that
defendant had a BAC of .08 percent or higher when he was
riding his motorcycle. Specifically, defendant contends [290
Or.App. 403] that it is speculative to find that his BAC was
above the legal limit at the time he was driving based on the
results of a blood alcohol test that he took one hour and 45
minutes later. In response, the state contends that, under
prior case law, the trial court was entitled to infer based
on the record before it that defendant's BAC when he was
riding was at least as high as the BAC measured by
defendant's later blood alcohol test. We agree with
defendant and reverse.
sufficiency of the evidence is a question of law."
State v. Reynolds. 250 Or.App. 516, 520, 280 P.3d
1046, rev den, 352 Or. 666 (2012). We review
"questions of the sufficiency of the evidence in a
criminal case following a conviction by examining the
evidence in the light most favorable to the state to
determine whether a rational trier of fact, accepting
reasonable inferences and reasonable credibility choices,
could have found the essential element of the crime beyond a
reasonable doubt." State v. Cunningham, 320 Or.
47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005
(1995). However, "[i]f the state has sought to establish
an element of a criminal offense by reasonable inference, * *
* whether sufficient evidence supports the inference is a
question for a court to decide." State v.
Guckert. 260 Or.App. 50, 55, 316 P.3d 373 (2013),
rev den, 354 Or. 840 (2014).
the state attempted to establish an element of its DUII case
by inference. That is, the state contends that, based on
defendant's blood alcohol test result of .09 percent
obtained one hour and 45 minutes after defendant was driving,
the fact that defendant had not consumed any alcohol during
that intervening time, and the common knowledge that alcohol
dissipates over time, a reasonable factfinder could infer
that defendant's BAC was .08 percent or higher at the
time that he was riding his motorcycle.
state is allowed to rely on "circumstantial evidence and
reasonable inferences flowing from that evidence" to
prove an element of a crime. State v. Bivins, 191
Or.App. 460, 466, 83 P.3d 379 (2004). However, "[t]here
is a difference between inferences that may be drawn from
circumstantial evidence and mere speculation."
Id. at 467 (internal quotation marks omitted).
"Reasonable inferences are permissible; speculation and
guesswork are not." Id. The line [290 Or.App.
404] between reasonable inferences and impermissible
speculation "'is drawn by the laws of
logic.'" Id. (quoting Tose v. First
Pennsylvania Bank, N.A.,648 F.2d 879, 895 (3d Cir),
cert den,454 U.S. 893 (1981), abrogated on
other grounds by Griggs v. Provident Consumer Discount
Co.,459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982)).
As a result, the issue before us is whether mere logic
renders probable that, when a person's BAC is .09 percent
one hour and 45 minutes after he drove and he has not
consumed alcohol over that period, that person's BAC was
at least .08 at the time that he was driving. See
Bivins, 191 Or.App. at 467 (noting that, if there is a
"logical probability that an ultimate ...