State v. Bowman, 326 Or. App. 565

Defendant stopped for lane maintenance problems; Sergeant Wertz (Oregon State Police, DRE-trained) administered HGN and other sobriety tests, arrested, and breath test showed BAC .08.
Wertz testified he observed 4 of 6 HGN clues (lack of smooth pursuit and sustained nystagmus at maximum deviation) and explained HGN and its relevance to driving impairment.
On redirect, Wertz described how an ophthalmologist (Dr. Karl Citek) taught that alcohol can cause the eyes to "regress" developmentally ("like a baby"), and linked that to impaired visual function while driving.
Defense objected at trial to that testimony on hearsay, confrontation, and "lack of foundation" grounds; the trial court overruled the objections, allowing Wertz to testify about what he learned in training without repeating any particular out-of-court statement.
Jury convicted on DUII, reckless driving, and recklessly endangering; on appeal, defendant challenged (1) hearsay/confrontation implications of Wertz’s recounting of training and (2) sufficiency of foundational showing for scientific HGN evidence (preservation issue).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Wertz’s testimony about what an ophthalmologist taught was inadmissible hearsay	State: Not hearsay because Wertz did not repeat an out‑of‑court declarant’s statement; he was explaining the basis for his opinion and relying on training (OEC 703).	Bowman: Wertz relayed an out‑of‑court expert’s statements; testimony was hearsay and violated confrontation.	Court: Not hearsay — Wertz gave general training-derived background, not a verbatim or case‑specific out‑of‑court statement; confrontation not implicated.
Whether HGN testimony required a specific foundational showing under O’Key and the State failed to lay it	State: Officer was qualified and tied HGN observations to impairment; foundational issues were not pressed below.	Bowman: HGN is scientific; under O’Key the State needed to establish officer qualification, proper administration, and accurate recording — foundation was insufficient.	Court: Argument not preserved for appeal (defense’s trial objections focused on hearsay/confrontation, not the O’Key foundational claim).

State v. O’Key, 321 Or 285 (Or. 1995) (HGN is scientifically valid and admissible if officer qualification, proper administration, and accurate recording are shown)
McCathern v. Toyota Motor Corp., 332 Or 59 (Or. 2001) (OEC 703 does not render inadmissible evidence admissible; background explanations for expert opinions are not hearsay when not offered for truth)
State v. Belden, 369 Or 1 (Or. 2021) (Oregon confrontation right applies only to hearsay; unavailable‑declarant requirements apply when hearsay is at issue)
State v. Ritchie, 251 Or App 587 (Or. App. 2012) (preservation requires specific trial objections so the court and opposing party can address the claimed error)
State v. Knepper, 62 Or App 623 (Or. App. 1983) (distinguishes improperly admitted case‑specific scientific test results as inadmissible hearsay)
State v. Prose, 308 Or App 167 (Or. App. 2020) (prejudicial error where expert testified to specific, inadmissible lab test results as substantive evidence)