292 P.3d 653
Or. Ct. App.2012Background
- Defendant convicted of DUII under ORS 813.010(l)(c) after bench trial; breath BAC 0.10; roadside investigation by DRE-trained Deputy Clarke following a tavern exit around 1:00 a.m.; Clarke observed signs suggesting impairment and suspected marijuana use based on tongue taste buds and other indicators; defendant admitted marijuana use the previous day; Clarke did not complete a full DRE protocol due to BAC above 0.08; defendant moved in limine to exclude marijuana-related evidence and its effects; trial court admitted the marijuana-related evidence and eventually convicted on both alcohol and marijuana offenses; defendant challenged the sufficiency of the marijuana-related evidence and the in limine ruling.
- Clarke testified to signs of possible controlled-substance impairment (pupils dilated, leg tremors, eyelid tremors) and to taste buds raised, and to defendant’s admission of prior marijuana use; trial court noted these indicators as part of a broader theory that defendant’s marijuana use contributed to alcohol impairment; the court did not complete a DRE protocol and relied on Clarke’s experience and non-DRE observations; the jury (or judge) was asked to consider a combination DUII theory under Harmon rather than a pure marijuana-impaired DUII.
- The State argued that a combination DUII can be proven by showing driver impairment from alcohol with marijuana contributing to impairment; defendant argued that incomplete DRE evidence and non-scientific testimony about marijuana would misimpress the scientific basis for impairment; the court allowed the evidence under a mixture of scientific and non-scientific expert testimony and rejected the acquittal challenge.
- The court’s decision rests on distinguishing combination DUII (alcohol plus a controlled substance) from pure controlled-substance DUII and permitting reasonable inferences that marijuana use contributed to impairment; the court also relied on Rambo and Aman to allow noncompletingDRE testimony to support impairment conclusions when not presented as a full DRE protocol.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of marijuana indicators without complete DRE | State argues indicators are admissible scientific evidence when tied to Clarke's training. | O’Key and Aman require complete DRE to admit such scientific evidence. | Admissible; underlying opinion permissible as nonscientific expert testimony. |
| Sufficiency of evidence for combined alcohol and marijuana DUII | Evidence shows alcohol impairment plus marijuana contributed to impairment. | Must show marijuana impairment alone or causation beyond impairment. | Sufficient under Harmon to support combined DUII. |
| Preservation/qualification of Clarke as expert for marijuana evidence | Clarke’s expertise justifies admission of marijuana-related indicators. | No preserved challenge to qualifications; potential error if expert not properly qualified. | Unpreserved argument rejected; admissibility affirmed. |
Key Cases Cited
- State v. Harmon, 239 Or App 587 (2010) (recognizes combined alcohol and controlled-substance DUII proof without extra causation evidence)
- State v. Sampson, 167 Or App 489 (2000) (DRE protocol admissibility with proper foundation; completeness matters)
- State v. Rambo, 250 Or App 186 (2012) (noncompleting DRE testimony admissible under 702 when grounded in training and experience)
- State v. Aman, 194 Or App 463 (2004) (incomplete DRE protocol not admissible as scientific evidence; components may be admissible nonscientific)