State v. Hedgpeth

365 Or. 724

452 P.3d 948

STATE of Oregon, Petitioner on Review,

v.John Charles HEDGPETH, Respondent on Review.

CC 14CR1014 (SC S065921)

Supreme Court of Oregon.

November 21, 2019

Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and filed 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, Office of Public Defense Services, Salem, argued the cause and filed 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.^**

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, 421 P.3d 354 (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 nonspeculative 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 "(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, 277 P.3d 549 (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 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, 277 P.3d 549 (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, "[s]omething 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, 277 P.3d 549.

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 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, 415 P.3d 1080. 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, 415 P.3d 1080. 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, 415 P.3d 1080 (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 "[s]omething more" that 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." See Eumana-Moranchel , 352 Or. at 9-10, 277 P.3d 549.

II. ANALYSIS

A. The Standard of Review for an MJOA

We turn to a preliminary dispute regarding the legal standard for granting a motion for judgment of acquittal.⁴ We have repeatedly explained that our standard for reviewing the denial of a motion for judgment of acquittal involves viewing the evidence in the "light most favorable to the state" to determine if the "state presented sufficient evidence from which a rational trier of fact, making reasonable inferences," could find the essential elements of the crime beyond a reasonable doubt. State v. Clemente-Perez , 357 Or. 745, 756, 762, 359 P.3d 232 (2015) ; see also State v. Lupoli , 348 Or. 346, 366, 234 P.3d 117 (2010) (same).

According to the state, the trial court’s finding that defendant had a BAC of at least .08 at the time that he was driving was a reasonable inference from the evidence of three predicate facts: 1) the trooper placed defendant under arrest for DUII shortly after he observed defendant driving; 2) a chemical test performed nearly two hours later measured defendant’s BAC at...