279 P.3d 361
Or. Ct. App.2012Background
- Defendant was arrested for DUII, reckless driving, and failure to appear after Officer McKinlay observed erratic driving.
- BAC reading was 0.0% on Breathalyzer; defendant admitted to taking methadone per doctor’s orders.
- Urine sample was not obtained due to not believing it was urine; second sample request was refused.
- Officer Johnson, a DRE expert, conducted a 12-step DRE evaluation and concluded defendant was under the influence of a narcotic analgesic.
- Trial court allowed Johnson’s opinion as nonscientific expert or lay evidence based on certain admissible elements; excluded others under OEC 403.
- Appellate court affirmed, holding Johnson’s challenged testimony admissible as nonscientific expert opinion; did not need to reach lay opinion analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Johnson’s opinion as nonscientific expert or lay opinion | State argued opinion admissible as nonscientific or lay evidence based on the DRE findings. | Defendant contended the opinion was scientific and required stricter foundation or was inadmissible due to incomplete DRE protocol. | Admissible as nonscientific expert opinion. |
| Effect of incomplete DRE protocol on scientific admissibility | Opinion could rely on underlying admissible evidence (HGN, BAC, etc.) even if the protocol was incomplete. | Incomplete protocol should render the opinion scientificly inadmissible. | Incomplete protocol did not bar admissibility as nonscientific expert opinion. |
Key Cases Cited
- State v. Sampson, 167 Or App 489 (2000) (DRE procedure admissible as scientific evidence when properly conducted)
- State v. Aman, 194 Or App 463 (2004) (incompletely administered DRE protocol limits scientific admissibility)
- State v. Clemens, 208 Or App 632 (2006) (police officer testimony not scientific shows lack of specialized psychology training)
- State v. Marrington, 335 Or 555 (2003) (testimony must show scientific basis to be scientific evidence under OEC standards)
- State v. O’Key, 321 Or 285 (1995) (foundational requirements for scientific evidence; HGN reliability importance)
- State v. Clark, 286 Or 33 (1979) (blood alcohol evidence admissible as scientific evidence with proper foundation)