State v. Banks, 507 P.3d 787

In July 2018, police responded to a hit-and-run; officers encountered Banks near his damaged Dodge truck and observed slurred speech, unsteadiness, dilated pupils, and frequent yawning.
Banks performed field sobriety tests (recorded on dash cam): no HGN, but 5/8 clues on walk-and-turn and 2/4 on one-leg stand; officer arrested him for DUII.
Breath test at the station showed 0.00 BAC; a DRE concluded impairment by a narcotic analgesic and a depressant; urine later tested positive for hydrocodone and zolpidem.
Banks sought to call family lay witnesses (wife and children) to testify they had observed prior episodes (syncopal/blackout-like) whose behavior matched Banks’s appearance during the recorded encounter.
Trial court excluded that testimony as impermissible scientific evidence under OEC 702; Banks preserved an offer of proof and appealed.
The Court of Appeals held the exclusion was error (testimony was lay observation, not scientific), and that the error was not harmless; reversed and remanded.

Issue	State's Argument	Banks's Argument	Held
Whether family testimony was impermissible "scientific" evidence requiring expert foundation under OEC 702	The testimony amounted to a medical/diagnostic assertion (syncopal episodes) and thus required expert/scientific foundation	Testimony was lay observation of behavior (no medical diagnosis), admissible under OEC 701	Court: Exclusion under OEC 702 was error; family testimony was non‑scientific lay observation
Whether lay testimony failed OEC 701 "helpfulness" requirement	(Raised first on appeal) Wife’s testimony lacked necessary context (timing relative to meds) and thus would not be ‘‘helpful’’ to jury	Testimony was rationally based on perception and could help jury assess intoxication/impeach state expert	Court: State forfeited this objection by not raising it below; did not decide on helpfulness; declined to affirm on that basis
Whether exclusion was harmless error	Error was harmless because toxicology and DRE evidence showed impairment	Exclusion was not harmless because family testimony could rebut state’s symptom-based case and impeach DRE	Court: Error was not harmless given centrality of observed symptoms and potential for family testimony to assist jury; reversal required

State v. Henley, 363 Or 284 (Oregon Supreme Court) (defines when evidence is “scientific” for OEC 702 purposes)
State v. Davis, 351 Or 35 (Oregon Supreme Court) (distinguishes lay observation testimony from scientific/diagnostic testimony)
State v. Evensen, 298 Or App 294 (Or. Ct. App.) (lay witness appearance testimony not scientific when based on personal observation)
State v. Tiner, 340 Or 551 (Oregon Supreme Court) (single offer of proof containing mixed admissible and inadmissible material may be rejected)
Outdoor Media Dimensions, Inc. v. State of Oregon, 331 Or 634 (Oregon Supreme Court) (explains ‘‘right for the wrong reason’’ affirmance limits)
State v. Barnes, 208 Or App 640 (Or. Ct. App.) (standard of review for exclusion of lay witness testimony)
State v. Tucker, 315 Or 321 (Oregon Supreme Court) (explains when lay opinion testimony is helpful for intoxication issues)
State v. Eatinger, 298 Or App 630 (Or. Ct. App.) (procedural rules for reviewing trial court evidentiary rulings)
State v. Carter, 315 Or App 246 (Or. Ct. App.) (standards for harmless error analysis)