304 P.3d 40
Or. Ct. App.2013Background
- Defendant was convicted of DUII after a jury trial under ORS 813.010.1.
- A juror asked pre-deliberation whether Ambien was a controlled substance; the court did not answer Directly.
- The court instructed the jury on DUII elements and that certain listed drugs are controlled substances.
- Evidence showed Ambien and other CNS depressants could be implicated; Ambien was discussed but not confirmed in the urine.
- Defendant testified he might have taken Ambien the night before; prosecution argued Ambien could explain nystagmus.
- During deliberations, jurors questioned Ambien’s relevance; court reinforced law but did not give Ambien-not-relevant instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ambien must be instructed as not relevant | Maciel-Cortes governs; Ambien evidence supports guilt | Ambien not relevant; court should instruct as such | Not required; Ambien evidence relevant and instruction not legally correct |
| Whether preservation supports challenging the Ambien instruction | Defendant preserved by requesting Ambien-not-relevant instruction | Preservation lacking for trial-record exclusions | Preservation found for this issue; trial court not required to give Ambien-not-relevant instruction |
Key Cases Cited
- State v. Maciel-Cortes, 231 Or App 302 (2009) (touches on comment-on-evidence and appellate standards)
- Jones v. Baldwin, 163 Or App 507 (1999) (review of juror-question handling; improper comment analysis)
- State v. Blanchard, 165 Or App 127 (2000) (comment on the evidence standard; preservation nuances)