Argued
and submitted March 1, 2019, at Willamette College of Law,
Salem, Oregon.
On
review from the Court of Appeals.[*] (CC 14CR1014) (CA A158196)
Paul
L. Smith, Deputy Solicitor General, Salem, argued the cause
and fled the briefs for petitioner on review. Also on the
briefs were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Emily
P. Seltzer, Deputy Public Defender, Offce of Public Defense
Services, Salem, argued the cause and fled the brief for the
respondent on review. Also on the brief was Ernest G. Lannet,
Chief Deputy Defender.
Before
Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan,
and Nelson, Justices, and Baldwin, Senior Justice pro
tempore. [**]
[365 Or
725] Case Summary:
Defendant
was convicted for driving under the influence of intoxicants
(DUII), based only on the fact that his BAC was .09 percent
two hours after he drove and that he consumed no alcohol
between the time he was pulled over and the breath test. The
trial court determined that defendant's BAC was at least
.08 percent at the time of driving and found him guilty of
DUII. Defendant argued that those facts were insufficient to
permit a non-speculative inference that his BAC was over the
legal limit, .08 percent, at the time he drove. The Court of
Appeals reversed.
Held:
On the
facts, the generic proposition that blood alcohol dissipates
over time was not enough to permit a non-speculative
inference that defendant's BAC was over the legal limit
at the time he drove. Balmer, J., fled a dissenting opinion
in which Baldwin, S.J., joined.
[365
Or. 726] FLYNN, J.
This
case arises out of defendant's challenge to his
conviction for driving under the influence of intoxicants
(DUII) by driving with a blood alcohol concentration (BAC) of
at least .08 percent. The record consisted solely of evidence
that a breathalyzer test measured defendant's BAC as .09
percent nearly two hours after he drove and that defendant
had consumed no additional alcohol in the interim. The Court
of Appeals agreed with defendant that the state's
evidence was insufficient to demonstrate that defendant drove
with a BAC of at least .08 percent. State v.
Hedgpeth, 290 Or.App. 399, 415 P.3d 1080, rev
allowed, 363 Or. 119 (2018). We allowed the state's
petition for review to consider whether "common
knowledge" of the proposition that blood alcohol levels
dissipate over time permits a factfinder reasonably to infer
that defendant drove with a blood alcohol level above the
legal limit from evidence that defendant's blood alcohol
level two hours later was .09 percent, with no consumption in
the interim. On those bare facts, we conclude that something
more than the generic proposition that blood alcohol levels
dissipate over time is needed to permit a non-speculative
inference that the defendant drove with a blood alcohol level
above the legal limit.
I.
BACKGROUND
A.
DUII Laws Generally
Oregon
has had laws prohibiting driving under the influence of
intoxicants for more than 100 years. See State v.
Miller, 309 Or. 362, 368, 788 P.2d 974 (1990) (citing Or
Laws 1917, ch 29, § 1). The crime is currently codified
at ORS 813.010, which provides,
"(1) A person commits the offense of driving while under
the influence of intoxicants if the person drives a vehicle
while the person:
"(a) Has 0.08 percent or more by weight of alcohol in
the blood of the person as shown by chemical analysis of the
breath or blood of the person made under ORS 813.100, 813.140
or 813.150;
"(b) Is under the influence of intoxicating liquor,
cannabis, a controlled substance or an inhalant; or
[365 Or. 727] "(c) Is under the influence of any
combination of intoxicating liquor, cannabis, a controlled
substance and an inhalant."[1]
As we
have explained, the statute describes alternative methods for
proving that a person drove while under the influence of
intoxicants:
"The state can establish that the defendant's BAC
was .08 percent or more, ORS 813.010(1)(a), regardless of
observable symptoms, or the state can prove that *** the
defendant was adversely affected by intoxicants to a
perceptible degree, ORS 813.010(1)(b), (c)."
State v. Eumana-Moranchel, 352 Or. 1, 7-8, 277 P.3d
549 (2012); see also State v. King, 316 Or. 437,
446, 852 P.2d 190 (1993) (ORS 813.010(1)(a) and (b) describe
a "single offense" with two elements-that the
accused drove a motor vehicle, and that the accused was under
the influence of intoxicants-and jurors did not need to agree
on whether the state had proven the latter element by way of
test results or otherwise). We have emphasized that the first
method, which we have referred to as the per se
method of proving DUII, reflects the legislature's
apparent assumption,
"based upon scientific studies and accepted medical
knowledge, that the physical and mental condition of a driver
with such a level of blood alcohol is impaired to such a
degree as to make it unsafe for him to drive a motor vehicle,
regardless of observable physical symptoms."
State v. Clark, 286 Or. 33, 39, 593 P.2d 123 (1979).
We also
have emphasized two features of the statute that complicate
the state's burden of proof. First, under either method
of proof, "the state must prove that the driver had the
proscribed BAC or was perceptibly impaired at the time
that he or she was driving." Eumana-Moranchel, 352
Or at 8 (emphasis in original). Second, proof of a per
se violation based on blood alcohol concentration must
be "shown by chemical analysis of the breath or
blood." State v. O'Key, 321 Or. 285, 308,
899 P.2d 663 (1995) (explaining that state [365 Or. 728]
could not rely solely on results of horizontal gaze nystagmus
test (HGN) to prove per se violation under ORS
813.010(1)(a) because "HGN test does not involve a
chemical analysis of breath or blood").
Those
requirements present a challenge when the state seeks to
prove that a person has committed DUII based only on evidence
from a chemical analysis of blood alcohol concentrations
because, as we observed in Eumana-Moranchel,
"it is virtually always the case that the chemical test
of the breath or blood is administered some time
after the person has stopped driving." 352 Or
at 9 (emphasis in original). From that premise and the
additional premise that "a person's BAC changes
during the time between being stopped and undergoing a breath
test[, ] *** [i]t follows that a chemical test result alone
never 'shows' the actual BAC of the driver at the
time of driving." Id. Thus, as we emphasized,
"[something more is necessary to connect the breath test
result to the statutory requirement of a BAC of .08 percent
or more at the time of driving." Id. at 9-10.
B.
Procedural History of the Case
For
reasons of strategy that have no bearing on this appeal, the
state chose to prove that defendant committed the crime of
DUII only under the per se method of proof-proving
that he drove with a BAC of at least .08.[2]The evidence at
trial consisted exclusively of testimony from the arresting
officer that (1) he had stopped defendant for riding a
motorcycle without a helmet; (2) he subsequently took
defendant into custody for DUII;[3] (3) he took defendant to the
police station where a breathalyzer test was administered one
hour and 55 minutes after the stop; (4) defendant did not
consume alcohol between the time of the stop and the
administration of the breathalyzer test, and (5)the
breathalyzer result showed a BAC of 0.09. Defendant [365 Or.
729] argued to the trial court that the evidence was
insufficient to permit a nonspeculative inference that his
BAC was over the legal limit at the time he drove, but the
court disagreed. Sitting as factfinder, the court explained:
"I will find him 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 the-with that
to equate it with time of driving. But that's the
evidence I have."
On
appeal, defendant renewed his challenge to the sufficiency of
the evidence, and the state responded by arguing that the
"common knowledge" that alcohol rates dissipate
over time permitted the factfinder to draw a reasonable
inference that defendant's BAC was at least .08 at the
time of driving. The Court of Appeals agreed with defendant
and reversed the conviction. The court reasoned that
"the factfinder cannot, at least on this record, apply
the common knowledge that blood alcohol goes up and down over
time to make a reasonable inference about when
defendant's BAC likely reached .08 or above and whether
that occurred while defendant was driving."
Hedgpeth, 290 Or.App. at 406. The Court of Appeals
identified three possible inferences that could be drawn:
That defendant's BAC was above .08 when he drove; that it
was at .08 when he drove; or that it was under .08 when he
drove. Id. at 407. Because the state did not present
"any evidence bearing on the movement of
alcohol through defendant's body or the presence of
alcohol in defendant's body at the time or shortly before
defendant drove," the court concluded that "there
is nothing but speculation that guides a factfinder to select
from one of those three possible inferences."
Id. at 406, 407 (emphasis in original).
This
court allowed review to address the role of inferences and
"common knowledge" when a court tests the
sufficiency of evidence to permit a criminal conviction. As
we explain below, we agree with the conclusion of the Court
of Appeals that "common knowledge" is not enough on
this record to supply the "[something more" that is
"necessary to connect the breath test result to the
statutory requirement of a BAC of .08 ...