and submitted October 5, 2018.
County Circuit Court 15CR48691; Jesse C. Margolis, Judge.
J. Allin, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
L. Jenkins, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: During defendant's closing argument in his trial
for driving under the influence of intoxicants, ORS
813.010(4), the trial court sustained the state's
objection to defendant's mischaracterization of the
evidence, then offered a clarifying instruction to the jury.
The jury convicted defendant. Defendant appeals, assigning
error to (1) the trial court's sustaining of the
state's objection, (2) the court commenting to the jury
that defendant had mischaracterized the evidence, and (3) the
court's instruction that the arresting officer's
testimony was admissible despite the officer's inability
to offer expert opinion on defendant's state of
intoxication. For assignments of error two and three,
defendant requests plain error review under Aile's v.
Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d
956 (1991). Held: The Court of Appeals affirmed
because defendant's first assignment of error was not
preserved and defendant's second assignment of error was
not plain. The court declined to exercise discretion under
Aile's to review the third assignment of error because
defendant played an active role in bringing about the alleged
Or.App. 75] Affirmed.
Or.App. 76] LAGESEN, P. J.
convicted defendant of driving under the influence of
intoxicants, ORS 813.010(4). On appeal, defendant contends
that the trial court erred in three respects: (1) by
sustaining the state's objection to defendant's
closing argument about the state's inability to supply a
drug recognition expert (DRE) opinion; (2) by commenting to
the jury that defendant's argument mischaracterized the
evidence; and (3) by instructing the jury that the lack of a
DRE opinion did not mean that the arresting officer
"didn't perhaps observe other signs that would
relate to impairment from controlled substance or
alcohol" and that could form the basis for his lay
opinion that defendant was intoxicated. Defendant, however,
did not preserve his assignments of error and, for reasons to
be explained, none warrants correction on plain-error review.
Accordingly, we affirm.
relevant facts are procedural and not disputed. The state
charged defendant with driving under the influence of
intoxicants, ORS 813.010(4). At trial, the arresting officer,
who was a drug recognition expert, was not permitted to offer
an expert opinion on whether defendant was under the
influence of intoxicants. That was because the officer had
not performed a DRE evaluation of defendant at the time of
his arrest. The trial court did allow the arresting officer
to offer a lay opinion that defendant was under the influence
cross-examination, defendant sought to highlight the
difference between a DRE expert opinion and a lay opinion and
to emphasize that the arresting officer, although a DRE
expert, was unable to opine as an expert that defendant was
intoxicated. Explaining to the trial court his theory,
defendant said: "[T]he State's trying to say a lay
person can have this opinion about marijuana, but an expert
cannot, which I think is all I want in, is that an expert
needs information to give an opinion, a lay person
doesn't. It's never made sense to me, but
that's fine." (Emphasis added.) The state was
concerned that this line of inquiry would attack the validity
of the arresting officer's lay opinion in a manner that
would confuse the jury. However, the court sided with
defendant and allowed him to highlight that the arresting
[300 Or.App. 77] officer could not offer an expert opinion
because he had not performed a DRE evaluation.
closing argument, defendant urged the jury to give the
arresting officer's testimony less weight because the
officer was unable to provide an expert opinion as to whether
defendant was intoxicated. He argued: "So we have * * *
the deputy over here, saying as a deputy, as an officer, as
to a limited amount of training, I can say he's under the
influence of marijuana, but as an expert with extra training,
more classes, more experience, I cannot render that
opinion." Shortly after that argument, the trial court
requested a sidebar, during which the court cautioned
defendant about mischaracterizing the evidence. Defendant then
resumed his closing argument but persisted in pursuing the
argument that the court had cautioned him against making:
"THE COURT: Please proceed, Counsel.
"[DEFENDANT]: Thank you, Your Honor. So basically what
you have here is you have a deputy as a deputy saying that
he's under the influence of marijuana, and you're
having a DRE say I don't have ...