and submitted May 31, 2018
County Circuit Court 09122393 David E. Delsman, Judge.
Sherbo-Huggins, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
G. Howe, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Armstrong, Presiding Judge, and Shorr, Judge, and Bunch,
Judge pro tempore.
Summary: Defendant appeals from a judgment of conviction for
manslaughter in the second degree and two counts of assault
in the fourth degree. Defendant assigns error to the trial
court's determination that a witness, who was a
registered nurse, was qualified to give expert opinion
testimony that people should not consume alcohol while taking
anti seizure medication. Held: The trial court
erred. There was insufficient evidence in the record to
establish that the witness had the knowledge, skill,
experience, training, or education to form a basis for
specialized knowledge about whether people may safely consume
alcohol when taking an anti seizure medication, and thus, she
was not qualified to give expert opinion testimony on that
Or.App. 622] SHORR, J.
appeals from a judgment of conviction for manslaughter in the
second degree (Count 1), ORS 163.125, and two counts of
assault in the fourth degree (Counts 2 and 3), ORS
163.160. The convictions arose out of a car crash
in which the vehicle that defendant was driving collided with
another vehicle, killing defendant's passenger and
injuring the driver and passenger of the other vehicle.
Defendant raises five assignments of error on appeal. We
write to address only defendant's fifth assignment of
error, that the trial court erred in determining that a nurse
who drew defendant's blood at the hospital was qualified
to give opinion testimony that people should not consume
alcohol while taking antiseizure medication. We conclude
that, on the record before us, the witness was not qualified
to testify as an expert regarding the effect of combining
alcohol and antiseizure medication. We also conclude that the
trial court's error was not harmless. Consequently, we
reverse and remand on Counts 1, 2, and 3 and otherwise
summarize all the evidence relevant to a trial court's
admission of testimony under OEC 702. State v.
Brown, 294 Or.App. 61, 62, ___ P.3d ___ (2018). The
state presented evidence that defendant and his roommate,
Spinney, drove from their home in Alsea, Oregon, to see a
friend's band play at a bar in Lebanon, Oregon. Defendant
admitted to consuming at least three alcoholic drinks over
the course of the evening. After the band finished playing, around
1:30 a.m., defendant and Spinney left the bar, intending to
drive back to Alsea. Defendant was driving and Spinney was in
the passenger seat. The weather was windy and rainy after
defendant left the bar, and visibility was limited. Defendant
ran a stop sign while travelling at a speed of [294 Or.App.
623] approximately 45 miles per hour and struck another
vehicle. Spinney was killed as a result of the collision, and
the two passengers in the other vehicle were injured.
police arrived on the scene, defendant was responsive and did
not have any major injuries. A detective noticed that
defendant was limping and that his eyes were bloodshot.
Defendant agreed to accompany the detective to a nearby
hospital to give blood and urine samples. At the hospital, a
registered nurse, Atchley, checked defendant for injuries and
drew his blood at around 3:51 a.m. A phlebotomist drew a
second blood sample approximately half an hour later. From
these two blood samples, defendant's blood-alcohol
content (BAC) was determined to be .059 percent and .052
was indicted for one count of manslaughter in the first
degree, ORS 163.118, for Spinney's death; two counts of
assault in the third degree, ORS 163.165, one count for each
of the two passengers of the other vehicle; and one count of
DUII, ORS 813.010. The case proceeded to a jury trial.
trial, an expert for the state testified that, using
retrograde extrapolation, defendant's BAC at the time of
the accident was likely within the range of .082 and .106
percent. Pertinent to this case, "[a] person commits the
offense of driving while under the influence of intoxicants
if the person drives a vehicle while the person *** [h]as
0.08 percent or more by weight of alcohol in the blood."
ORS 813.010 (D(a).
theory at trial was that he had a seizure at the time of the
accident. Defendant suffers from a seizure disorder for which
he takes medication twice per day. He testified that he last
took his medication on the morning of the accident, before he
and Spinney left for Lebanon. Defendant reported that he
missed his second dose of medication that evening. One of the
responding deputies testified that defendant told him that
"bad things" could happen if he misses a dose.
Defendant also testified that the seizure medication was his
"stupid pill" because it made concentrating and
multitasking difficult for him. Defendant testified [294
Or.App. 624] that the prescription sheet for his antiseizure
medication instructed him that drinking in moderation was
element of the crimes of manslaughter and assault, the state
was required to prove at trial that defendant acted with a
reckless mental state. ORS 163.125(1)(a); ORS 163.160(1)(a). The
state's theory of recklessness was, in part, that
defendant disregarded a risk when he mixed alcohol and
antiseizure medication. On this point, the state called
Atchley, the nurse who drew defendant's blood at the
hospital, as an expert witness. Atchley testified to the
following: (1) that she had been a registered nurse since
2007; (2) that she had a four-year degree in nursing from
Oregon Health & Science University (OHSU), which required
two years of prerequisite classes and two years of nursing
courses "where we do clinicals, learn skills, learn
review of systems, you know, just a little about everything
that you need to be a nurse"; (3) that she passed the
NCLEX national standardized test for nursing; (4) that she
reapplies for her license every two years; (5) that she was
required to have additional certifications in trauma,
emergency nurse ...