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State v. Dodge

Court of Appeals of Oregon

December 4, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
SHANE MICHAEL DODGE, Defendant-Appellant. 301 Or.App. 1

          Submitted October 10, 2017

          Multnomah County Circuit Court 15CR47527; Steven R. Evans, Judge pro tempore.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals from his conviction of misdemeanor driving while under the influence of intoxicants, contending that the trial court erred in admitting without redaction a report showing defendant's blood alcohol content and in failing to make a record of the court's exercise of discretion in weighing the probative value of the evidence against the danger of unfair prejudice under OEC 403. Held: The court made an adequate record of its exercise of discretion and any error in admitting the unreacted report was harmless.

          [301 Or.App. 2] EGAN, C. J.

         Defendant appeals from his conviction of misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010, contending that the trial court erred (1) in admitting without redaction an Intoxilyzer 8000 test report showing defendant's blood alcohol content, which he contends caused him unfair prejudice; and (2) in failing to make a record of the court's exercise of discretion in weighing the probative value of the evidence against the danger of unfair prejudice under OEC 403. We conclude that the court made an adequate record of its exercise of discretion and that any error in admitting the report was harmless, and we therefore affirm.

         Portland Police Officer Piombo stopped defendant for traffic violations. While conversing with defendant, Piombo noticed signs of intoxication, including slurred speech, bloodshot and watery eyes, and an odor of alcohol. Defendant admitted that he had been drinking and agreed to perform several field sobriety tests which he was not able to pass. Defendant agreed to go to the police station with Piombo to take a breath test. It is not disputed that the equipment, an Intoxilyzer 8000, was functioning properly and that the breath test showed that defendant had a blood alcohol content (BAC) of .06. Based on the Intoxilyzer results and defendant's performance of the field sobriety tests, Piombo cited defendant for DUII.

         At trial, the state introduced the printout from the Intoxilyzer 8000 breath test showing that defendant's BAC at the time he took the test was .06 percent. The printout, a "Breath Test Report," looked approximately like this:

Test

%BAC

Status

Time

Air Blank

0.000

PASS

22:04 PDT

Diagnostics

OK

PASS

22:05

Air Blank

0.000

PASS

22:05

Subject Sample

0.0 74

OBTAINED

22:05

Air Blank

0.000

PASS

22:06

Air Blank

0.000

PASS

22:08

Subject Sample

0.066

OBTAINED

22:08

Air Blank

0.000

PASS

22:09

Control Sample

0.084

PASS

22:09

Air Blank

0.000

PASS

22:10

* * EXPECTED VALUE FOR CONTROL: 0.085 % BAC * *

TEST RESULT:

0.06 % BAC

         Defendant stipulated to the accuracy of the Intoxilyzer test but asked the court to "redact" digits other than the Test Result of .06 percent that he considered to be "extraneous." Defendant asserted that those numbers, in particular, the first "Subject Sample," showing a BAC of .074 percent, and the "Control Sample," showing a BAC of .084 percent, were not relevant and might mislead the jury and confuse the jury to think that defendant's BAC was greater than .06 percent. The trial court rejected defendant's request:

"THE COURT: "* * * I don't see that it's prejudicial at all, especially since you can examine the officer, what does this mean, what does this mean, you can ask him about the date, you can ask him about anything you want about it. Let me see the offending document.
"[DEFENSE COUNSEL]: It says there is one sample that's a .07 something, and there's one that's a .06 something.
"THE COURT: Subject sample .074, then control sample .084, subject sample .066. I think that would be more worrisome to redact it than it would just to have it explained as to what this entails.
"[DEFENSE COUNSEL]: Well, quite frankly I think that that is cumulative because all the testimony is going to be that my client's test result was a .06. We would stipulate to that. All that's doing is putting in extra figures in front of the jury to say, hey, no, he's really .07 something, he's almost .08, so therefore, to sway the jury[.]
"THE COURT: If [the prosecutor] argues that, we can take up a different issue. I don't see where he can be prevented from providing proof of the analysis of the blood test and the results thereof. Your objection is overruled."

          [301 Or.App. 4] The court also rejected a request by defendant to redact the third digit of the breath test sample numbers as insignificant, explaining:

"There's nothing prejudicial here. You have not said anything that shows it's prejudicial or that it is not subject to your examination and explanation."

         Defendant's counsel responded that "[t]he fact that something is subject to my examination doesn't mean that it isn't prejudicial." The court adhered to its ruling.

         The court briefly addressed the jury, and then the prosecutor gave an opening statement:

"Ladies and gentlemen of the jury, two ways for the State to meet its burden in this case. The first, show you evidence that a person's blood alcohol content exceeded .08. This is not that case. What the evidence is going to show here is that shortly after the time he was stopped, [defendant's] blood alcohol content was .06. The other way the State can[] prove his case is by demonstrating to you beyond a reasonable doubt that [defendant's] mental and physical capacities were adversely affected to a noticeable and perceptible degree. What you're going to hear is the testimony of Officer Mark Piombo. He is a traffic officer with the Portland Police Bureau. What that means is that he specializes purely in traffic matters, including an extensive experience with DUIs. He'll tell you that on the night in question, he pulled [defendant] over due to some bad driving and he makes contact with [defendant] and he notices [what] in his experience is indicia of intoxication, slurred speech, bloodshot, watery eyes, odor of alcohol, those sorts of things, and so he administers the field sobriety tests to [defendant], and he'll go into great detail about each of the three tests, what they are, how they are administered and specifically what [he] is looking for. He'll testify that [defendant] failed all the tests. Then he takes him back to the station and he administers the breath test [and] the result is a .06r

(Emphases added.) In his opening statement, defense counsel stated: "You will hear testimony that my client's blood alcohol level was .06 and that is basically 75 percent of what the legal limit is, that .08 is the legal limit." (Emphasis added.)

          [301 Or.App. 5] Officer Piombo then testified that he stopped defendant after a Lidar speed detection device clocked defendant's vehicle traveling on Interstate 205 at a speed of 83 and 84 miles per hour in a 55-miles-per-hour zone. Piombo testified that he then pursued defendant's vehicle on his motorcycle and observed defendant repeatedly change lanes and tailgate another vehicle. Piombo activated his emergency lights. Defendant did not immediately pull over but did so after Piombo activated his siren. Piombo testified that he observed physical signs of intoxication on defendant and smelled an odor of alcohol about defendant's person, coming from his mouth as he spoke. At a close distance, Piombo observed that defendant's eyes were watery, pink, and red, and that his speech was thick and slurred. Defendant agreed to perform some field sobriety tests, and Piombo administered three ...


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