State v. Eatinger

298 Or.App. 630

448 P.3d 636

STATE of Oregon, Plaintiff-Respondent,

v.Robert Joseph EATINGER, Defendant-Appellant.

A160913

Court of Appeals of Oregon.

Argued and submitted May 30, 2017.

July 31, 2019

Andy Simrin argued the cause for appellant. Also on the brief was Andy Simrin PC.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge.^*

DEHOOG, P. J.,

A jury found defendant guilty of driving under the influence of intoxicants (DUII), ORS 813.010(1),¹ after hearing an officer describe defendant’s performance on field sobriety tests (FSTs); those tests, the officer explained, were scientifically validated and "the product of scientific research." On appeal, defendant assigns error to two of the trial court’s rulings concerning that testimony. Each assignment—one challenging the court’s denial of his motion to strike testimony and the other challenging the court’s admission of further testimony—raises the same question: whether that testimony was scientific evidence requiring a foundation satisfying the Brown / O’Key standard under OEC 702.² Defendant contends that the officer’s testimony was scientific evidence and that the court erred in failing to require the state to lay a sufficient foundation for that testimony. The state responds that the court did not err, because it did not admit the officer’s testimony as "scientific" evidence; rather, it contends, the trial court allowed him to testify only as to the "historical fact" that the FSTs were developed through scientific research. We conclude otherwise. Under the specific circumstances of this case, the officer’s testimony regarding the FSTs and their scientific underpinnings was scientific because it purported to draw its convincing force from principles of science. Because the state presented the officer’s testimony without laying an adequate foundation for it, the court erred in denying defendant’s motion to strike and in admitting the challenged testimony. Furthermore, that error was not harmless. We therefore reverse and remand.

When we review a trial court’s evidentiary ruling, we do so in light of the record that was before the court at the time of the ruling. State v. Brumbach , 273 Or. App. 552, 553, 359 P.3d 490 (2015), rev. den. , 359 Or. 525, 379 P.3d 516 (2016). When evaluating whether the erroneous admission of evidence was harmless, we consider all pertinent parts of the record. Id. at 553-54, 359 P.3d 490.

At trial, the state presented evidence that, at approximately 10:00 p.m. on September 7, 2015, Officer Scott of the Portland Police Bureau Traffic Division pulled defendant’s car over after detecting defendant’s speed to be 45 miles per hour in a posted 25 miles-per-hour zone. When defendant rolled down his window, Scott immediately smelled a strong odor emitting from the car that Scott associated with alcohol. In response to questioning from Scott, defendant acknowledged having had a glass of wine with dinner and a mixed drink a couple of hours before that. Scott noted that defendant fumbled in producing his driver’s license, that his speech was slurred, and that his eyes were bloodshot and watery. Defendant also appeared dazed and disoriented, and he was slow to respond to Scott’s questions. As a result of his observations, Scott concluded that defendant appeared to be intoxicated.

Scott asked defendant to perform FSTs. As defendant stepped out of his car, he walked very deliberately, and he swayed noticeably when he stood. During the first FST, the horizontal gaze nystagmus (HGN) test, Scott observed four out of that test’s six possible clues of intoxication. During the walk-and-turn test, defendant was slow, stepped off line to maintain his balance, missed placing heel-to-toe numerous times, used his arms for balance, and failed to take the turn as instructed. Finally, during the one-legged-stand test, defendant again used his arms for balance, swayed noticeably, and put his foot down three times.

Based on defendant’s performance on the FSTs and Scott’s earlier observations, Scott arrested defendant for DUII. At the police station, defendant submitted to a breath test that produced a final test result indicating a 0.06 percent blood alcohol content (BAC). At that time, which was approximately 10:45 p.m., defendant reiterated that he had had a glass of wine and a Manhattan that evening between 7:00 p.m. and 9:15 p.m. When asked to rank his level of intoxication on a scale of one to ten, defendant responded "two."

At trial, Scott was the only witness. Defendant’s challenges on appeal both relate to Scott’s testimony. Although defendant raises two assignments of error, the rulings that he challenges—the denial of his motion to strike testimony that Scott had given and the subsequent admission of additional testimony—both resulted from one protracted colloquy between the parties and the court. Moreover, as noted, both assignments of error present the same legal question: whether it was error for the trial court to permit Scott to testify that the FSTs are scientific in the absence of a foundation for scientific testimony.

At the outset of his testimony, Scott explained that he had been a police officer with the traffic division for 14 years, and that his "specific function" was "to investigate DUI drivers; to go out and make traffic stops to try to find impaired drivers." According to Scott, he had received basic standardized FST training at the police academy, as well as field training with the traffic division that included DUII stops. He later attended standardized FST instruction school and, as a result, is now an instructor who teaches other officers how to conduct FSTs. Scott also testified that he had attended drug recognition school, had become a "drug recognition expert" (DRE), and, as he had with regard to FSTs, had ultimately gone to DRE-instructor school. After explaining the purpose of FSTs and discussing some of the more common physical and mental symptoms of alcohol intoxication, Scott agreed with the prosecutor that he was "fairly familiar with literature and the scientific nature of how alcohol reacts once it’s in the body," but acknowledged that he was not a forensic scientist. Scott testified at some length without objection as to the absorption of alcohol into the blood stream, its effect on the central nervous system and the initial deterioration of fine motor skills, including speech, its progressive influence on larger muscle groups and resulting issues with balance and coordination, and related matters.

Scott also was permitted to testify that, once alcohol reaches the blood stream, "enzymes in the liver start to filter it out and break it down," resulting in dissipation of blood-alcohol levels at a typical rate of ".15 [sic ] percent per hour." However, when the prosecutor asked Scott how long it takes for the body to absorb the alcohol in a single drink, defense counsel objected, stating, "I let it go for a little bit on absorption/dissipation; that’s common knowledge, but if it’s going to get any more technical than that, I’d respectfully object." The trial court sustained that objection.

When Scott resumed his testimony, he began to explain how officers use FSTs during DUII investigations and, specifically, "how [they] interpret the results or the clues and what those clues mean as far as the reliability of that test that the person is over a 0.08 or is impaired." Defense counsel again objected and moved to strike that testimony. Following a discussion outside the presence of the jury, in which Scott acknowledged having cited certain National Highway Traffic Safety Administration (NHTSA) studies that equated various FST "clues" with specific BACs, the court instructed him to "stay away from talking about the studies." The court admonished Scott, "That’s not your area. You need to talk about your observations." Furthermore, when the jury returned, the court gave the following instruction:

"So ladies and gentlemen, you are to strike any reference to any scientific studies that correlate [to] any type of activity. The officer is going to testify from only his knowledge and observation. And so that portion of his testimony is stricken."

Later, however, when Scott testified about defendant’s performance on the walk-and-turn test, the prosecutor asked him what the significance is of a suspect raising his arms. Scott began to respond, stating, "It’s just an indicator. These are all clues when they do the scientific validation and the training for me—," but defense counsel interjected, moving to strike that response. Following that motion, the parties and the court engaged in a lengthy discussion outside the presence of the jury:

"[DEFENSE COUNSEL]: Judge, this is one—I think you’ve already ruled on this, so I don’t think—I don’t have much to say. I just would like the officer to not, during talking about the walk-and-turn and one-legged-stand to not try to give it the imprimatur of science. I think you already sustained that objection.

"THE COURT: I did. Yeah, I don’t think that he’ll do that. He was right here and understanding. Go ahead.

"[PROSECUTOR]: Your Honor, we would be asking—I would ask the witness whether or not these tests were validated. Like how the tests were come up with and if there is scientific validation.

"THE COURT: So that—no, no, no. The answer’s no."

The state clarified that it had no intention of having Scott equate defendant’s performance on any of the FSTs with a specific BAC, then proceeded to explain what it did intend to have him discuss:

"[PROSECUTOR]: We’re saying he demonstrated these clues as evidence of impairment and that those tests were scientifically created tests, that they weren’t just some randomly generated tests, that there is some science behind the methodology of the test, but that we’re not

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