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State v. Brown

Court of Appeals of Oregon

September 12, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
WILEY JOSEPH BROWN, Defendant-Appellant.

          Submitted June 30, 2017

          Deschutes County Circuit Court MI142800 Alta Jean Brady, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erin J. Snyder Severe, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.

          Before Tookey, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.

         Case Summary:

         In this criminal case, defendant appeals a judgment convicting him of one count of driving under the influence of intoxicants. He argues that the trial court erred in concluding that a police officer was qualified to offer expert testimony that a person who had nystagmus as a result of traumatic brain injury would not exhibit all six "clues" on the horizontal gaze nystagmus (HGN) test.

         Held:

         The record did not demonstrate that the officer had anything more than a general familiarity with the relationship between traumatic brain injury and nystagmus. Although he could testify that his training had familiarized him with the fact that brain injury can cause nystagmus, he lacked the in-depth knowledge necessary to inform the jury that the result of defendant's HGN test was attributable to alcohol consumption and not traumatic brain injury. The error was not harmless.

         Conviction for driving under the influence of intoxicants reversed and remanded; otherwise affirmed.

         [294 Or.App. 62] TOOKEY, P.J.

         In this criminal case, defendant appeals a judgment convicting him of one count of driving under the influence of intoxicants (DUII), ORS 813.010. He argues that the trial court erred in concluding that a police officer was qualified to offer expert testimony that a person who had nystagmus[1]as a result of a traumatic brain injury would not exhibit all six "clues" on the horizontal gaze nystagmus (HGN) test. We agree with defendant that the officer lacked the expertise necessary to testify as he did regarding the relationship between traumatic brain injury and HGN, and we conclude that the trial court's error was not harmless. Accordingly, we reverse and remand.

         We summarize all the evidence relevant to the trial court's admission of the officer's testimony under OEC 702, and we review the court's ruling for legal error. State v. Hazlett, 269 Or.App. 483, 494, 345 P.3d 482 (2015). City of Bend Police Officer Poole was the only witness at trial. Poole testified that he stopped defendant, who was driving a Jeep, after observing defendant improperly take the right of way at a stop sign and intentionally skid during a turn on a slushy, icy road. During the stop, Poole observed that defendant's head was lolling against the door of the Jeep; his speech was slurred; his movements were slow; his eyelids were droopy; and his eyes were bloodshot and "glossed over." In response to Poole's request for defendant's driver's license, registration, and insurance information, defendant told him an unrelated story, became confused, and asked what Poole wanted. Defendant agreed to perform field sobriety tests. After he got out of his vehicle, he stumbled, and Poole smelled a strong odor of alcohol on his breath. Before beginning the tests, Poole asked defendant a series of "pretest questions" and, during that exchange, defendant informed Poole that he had suffered a traumatic brain injury but did not have speech problems as a result. Later in the series of questions, defendant explained that he had a past head injury. Later in [294 Or.App. 63] the stop, Poole learned that, as a result of being hit by a car, defendant had a prosthetic leg.

         As described in more detail below, Poole conducted the HGN test and defendant scored six out of six possible points, which, Poole testified, indicated that defendant was impaired. After defendant fell on a snow berm, Poole decided to arrest him rather than attempt to conduct more field sobriety tests in the icy conditions. When he was arrested, defendant became angry and aggressive. Throughout the rest of the encounter, defendant had erratic mood swings. In addition to swearing at Poole, defendant stated that he had been drinking wine. Although Poole testified that defendant had consented to take a breath test, no breath test results were introduced.

         On direct examination, Poole testified that the HGN "test is basically an eye test. It's-we look for involuntary jerking of the eyes. Whenever a person's under the influence of alcohol, it causes an involuntary jerking of the eyes." Poole explained that, before beginning the test, he makes sure "that their pupils are consistent in size; that there's no resting nystagmus," that is, no jerking of the eyes while they are resting; "and that they're able to look and focus on the tip of my pen."

         Then Poole explained that, during the test, he looks for a lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus before 45 degrees. To score the test, Poole gives one point for each of those "clues" exhibited in each eye, for a total of six possible points. When he conducted the test on defendant, defendant scored six points, which, Poole testified, indicated impairment.

         On cross-examination, defense counsel questioned Poole about his experience with traumatic brain injuries and his understanding of their relationship to nystagmus:

"Q. And have you had experience with people who have traumatic brain injuries?
"A. Yes. I've talked to people, but not like-I haven't evaluated them or anything.
''* * * * *
[294 Or.App. 64] "Q. Now, you mentioned that you had had some interaction with people who have traumatic brain injuries.
"A. Uh-huh.
"Q. In your experience, isn't it typical that they can get confused more easily than others?
"A. My experience of folks with traumatic brain injury, they're pretty serious, so they're already confused as it is a lot of time. Not really able to speak very well. Most of them can't walk, that kind of thing.
"Q. But it would probably depend on the degree of injury, just on-
"A. I would assume so, yes.
"Q. So you would agree, then, that they might need to concentrate a little bit more on their actions?
"A. Possible.
"Q. Would it surprise you that someone with a traumatic brain injury and a prosthetic leg may have some difficulty walking through those winter conditions?
"A. It wouldn't surprise me, no.
''* * * * *
"Q. The questions you ask individuals prior to initiating the [HGN] test, those are meant to gauge, well, potential injuries they might have that would interfere with the test?
"A. Yes, sir.
"Q. And you testified that you were trained pursuant to the National Highway Traffic Safety [Administration (NHTSA)] ...

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