State v. Beltran-Chavez

286 Or.App. 590

400 P.3d 927

STATE of Oregon, Plaintiff-Respondent,

v.Abelardo BELTRAN-CHAVEZ, Defendant-Appellant.

A152983

Court of Appeals of Oregon.

Argued and submitted June 18, 2014.

July 6, 2017

Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DeVore, Presiding Judge, and Hadlock, Chief Judge, and Duncan, Judge pro tempore.^*

DUNCAN, J. pro tempore.

In this criminal case, defendant appeals a judgment convicting him of driving under the influence of intoxicants (DUII), ORS 813.010, and failing to perform the duties of a driver, ORS 811.700. Defendant assigns error to the trial court's denial of his pretrial motion to prohibit the arresting deputy's testimony that defendant "passed" or "failed" certain field sobriety tests (FSTs). Defendant argues that that testimony is scientific because it draws its convincing force from a scientific proposition, namely, that exhibiting a certain number of standardized "clues" during performance of the test means that the test subject is under the influence of intoxicants. Defendant also assigns error to the trial court's denial of his request for a special jury instruction regarding the results of a breath test to determine his blood alcohol content (BAC).

We conclude that the deputy's testimony at issue here is scientific and, consequently, that the trial court erred in denying defendant's motion and admitting the testimony without a proper foundation, and we further conclude that the error was not harmless. Therefore, we reverse and remand defendant's DUII conviction, and, because the record may develop differently on remand, we do not address defendant's assignment of error regarding the denial of his request for a special jury instruction. Because defendant's arguments on appeal pertain only to his DUII conviction, we affirm his conviction for failing to perform the duties of a driver.

I. HISTORICAL AND PROCEDURAL FACTS

The pertinent facts are not in dispute. While driving out of a parking lot, defendant struck another car and failed to immediately stop. Defendant eventually pulled into a different parking lot, where witnesses to the collision confronted him. Shortly thereafter, Deputy Duenas arrived and spoke with defendant. Duenas noticed that defendant was a little "standoffish" and did not seem to want him there. Duenas also noticed that defendant had bloodshot, watery eyes and a "relaxed" look on his face. Duenas smelled a moderate odor of alcohol on defendant. Duenas asked defendant if he had been drinking, and defendant answered that he had had two bottles of beer one hour before. Duenas asked defendant to perform FSTs, and defendant agreed. Duenas administered the horizontal gaze nystagmus (HGN) test,¹ the walk-and-turn test, and the one-leg-stand test.

Based on Duenas's observations and defendant's performance on the FSTs, Duenas arrested defendant and transported him to the police station. At the station, Duenas tested defendant's breath with the Intoxilyzer 8000, which requires two successful breath samples to provide a final test result. See OAR 257-030-0130(3). Defendant gave two breath samples indicating that his BAC was 0.082 and 0.079, respectively. The final result of defendant's breath test was a 0.07 BAC, which is the lower sample truncated to two decimal places. See OAR 257-030-0140 (after a successful breath testing sequence, "the lower breath sample measurement shall be truncated to two decimal places and reported as the chemical test result").

Defendant was charged with DUII and failure to perform the duties of a driver. Before trial, defendant moved to prohibit Duenas from testifying that defendant had "passed" or "failed" the walk-and-turn or one-leg-stand tests because those terms are scientific; they derive from a purported statistical correlation between exhibiting a certain number of clues on the test and having a high BAC. Defendant argued that "applying that 'pass or fail' [to a person's performance on those FSTs] puts a scientific backing that doesn't exist and isn't tested." He asserted that Duenas could testify that defendant exhibited "six out of eight clues or eight out of eight clues [on a given test], but just not use the term, 'pass' or 'fail.' " The state responded that "the officers can testify as to whether he passed or failed[,]" because FSTs are "standardized test[s]." The trial court denied defendant's request and allowed the state to introduce Duenas's testimony about whether defendant passed or failed the FSTs without laying a scientific foundation for that testimony.

At trial, Duenas testified about defendant's performance on the FSTs. Specifically, he testified that defendant had exhibited four of eight possible "clues" on the walk-and-turn test: (1) He started before Duenas told him to; (2) he was unable to maintain his balance while Duenas gave him instructions; (3) he took eight steps before turning, instead of the required nine steps; and (4) he made an improper turn. In addition to describing those problems with defendant's performance, Duenas testified that that score meant that defendant had failed the test:

"Q. * * * You testified that [defendant] showed four out of eight clues on the walk and turn?

"A. Yes.

"Q. Is that a passing or failing score?

"A. Fail."

Later, Duenas testified to his opinion that defendant was impaired when he drove:

"Q. About how long were you with the defendant back on August 20th?

" * * * * *

"A. Almost two hours, maybe?

"Q. Now based on your training and experience and your contact with the defendant that night, were you able to form an opinion as to the state of the defendant's sobriety that night?

"A. Yes.

"Q. What was that opinion?

"A. That he was impaired to a noticeable and perceptible degree."

On cross-examination, Duenas testified that defendant's motor skills did not appear to be impaired, defendant's balance was intact, his speech was normal, and he behaved politely. Additionally, Duenas admitted that, although defendant started the walk-and-turn test before Duenas told him to, Duenas had not instructed defendant to wait for his command before starting the test. Defense counsel also elicited Duenas's testimony that defendant had passed the one-leg-stand test.

The state also introduced defendant's "Breath Test Report." The one-page report included two "subject samples"—a 0.082 BAC and a 0.079 BAC—and a "Test Result" of 0.07 BAC. Duenas testified about defendant's two breath samples, and, when asked what the final result was, Duenas stated that "[t]he test result was a .07 percent BAC." Similarly, on cross-examination, Duenas testified that neither of the "subject samples" was official and that, instead, the 0.07 "Test Result" represented defendant's official BAC.

Using retrograde extrapolation, the state's forensic expert, Bessett, estimated defendant's BAC at the time of driving. Bessett based his calculations off of the "subject samples" rather than the "Test Result." According to Bessett, on the lower range, defendant's BAC at the time of driving was the same as the "subject samples," and on the higher end, it was 0.01 more than those samples.

The jury convicted defendant of DUII and failure to perform the duties of a driver, and this appeal followed.

II. DISCUSSION

On appeal, defendant asserts that the trial court erred in denying his pretrial motion to exclude testimony that he "passed" or "failed" the walk-and-turn or one-leg-stand tests because that testimony was scientific and the state did not lay an adequate foundation for it. We begin by explaining the governing law, then we turn to the parties' arguments.

A. Legal Framework

OEC 702, which governs the admission of expert testimony, provides, "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." In State v. Brown , 297 Or. 404, 408, 687 P.2d 751 (1984), the Supreme Court concluded that expert scientific evidence is best evaluated under traditional admissibility standards for expert testimony under OEC 702. Those standards require expert testimony to be "relevant under OEC 401 and [helpful to] the trier of fact in deciding a disputed issue." Id. at 409, 687 P.2d 751. Expert testimony is helpful if its subject is "within the expert's field," the witness is qualified, and the foundation for the opinion intelligibly relates the testimony to the facts. Id. Finally, the trial court must consider whether the testimony "is unduly prejudicial, repetitive, or falls under some other exclusionary provision" of OEC 403. Id. The court held that, "[i]n determining whether scientific evidence is probative under OEC 401 and the relevancy and prejudice analysis implicated in OEC 702's helpfulness standard," seven factors "provide structure and guidance in applying those rules of evidence."² Id. at 417, 687 P.2d 751. The factors, which are not exclusive, are intended to assist a court in performing its "vital role of gatekeeper, screening proffered scientific testimony to determine whether it is sufficiently valid, as a matter of science, to legitimately assist the trier of fact and excluding bad science in order to control the flow of confusing, misleading, erroneous, prejudicial, or useless information to the trier of fact." Marcum v. Adventist Health System/West , 345 Or. 237, 244, 193 P.3d 1 (2008) (internal citations, brackets, and quotation marks omitted).

Eleven years later, in State v. O'Key , 321 Or. 285, 899 P.2d 663 (1995), the Supreme Court again addressed the admissibility of expert scientific evidence and refined...