492 P.3d 728
Or. Ct. App.2021Background
- Officer stopped Reid for speeding and observed signs of impairment (flushed face, dazed appearance, glassy/bloodshot eyes, dry mouth) and smelled burnt marijuana.
- Officer offered voluntary field sobriety tests (FSTs); Reid agreed and performed them.
- Officer testified about specific FST "clues" (e.g., five of eight on walk-and-turn) and, when asked, stated that four clues constitute a "fail."
- Defense objected and the court initially ordered the jury to disregard the "fail" testimony; the prosecutor then clarified and the officer testified that the tests are "pass or fail," to which defense did not object further.
- Reid was convicted of DUII and appealed, arguing that testimony treating FSTs as "pass/fail" is scientific evidence under OEC 702 (per State v. Beltran-Chavez) and required a scientific foundation; the State conceded plain-error review and reversal was appropriate.
- The court held the preservation issue was unpreserved but, on the State's concession, treated the error as plain and reversed the DUII conviction and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officer testimony that FSTs are "pass or fail" is scientific evidence requiring OEC 702 foundation, and whether any error was preserved | State conceded that the error was plain and that reversal is appropriate | Testimony that FSTs are "pass/fail" is scientific under Beltran-Chavez and requires a foundation; original objection preserved or, alternatively, plain-error relief warranted | Objection to the later testimony was unpreserved; nevertheless the error was plain and correction was appropriate — DUII conviction reversed and remanded for resentencing |
Key Cases Cited
- State v. Beltran-Chavez, 286 Or. App. 590 (2017) (officer testimony that FSTs are "pass/fail" is scientific evidence under OEC 702)
- State v. Henley, 363 Or. 284 (2018) (test for when evidence is perceived as scientific: expressed as scientific, draws on scientific principles, or has persuasive appeal of science)
- State v. O’Key, 321 Or. 285 (1995) (discusses persuasive appeal of science standard)
- Ailes v. Portland Meadows, Inc., 312 Or. 376 (1991) (plain-error standard: error that is obvious and apparent on the face of the record)