Lead Opinion
In this сriminal case, defendant appeals a judgment convicting him of driving under the influence of intoxicants (DUII), ORS 813.010, and failing to perform the duties of a driver, ORS 811.700. Defendant assigns error to the trial court’s denial of his pretrial motion to prohibit the arresting deputy’s testimony that defendant “passed” or “failed” certain field sobriety tests (FSTs). Defendant argues that that testimony is scientific because it draws its convincing force from a scientific proposition, namely, that exhibiting a certain number of standardized “clues” during performance of the test means that the test subject is under the influence of intoxicants. Defendant also assigns error to the trial court’s denial of his request for a special jury instruction regarding the results of a breath test to determine his blood alcohol content (BAC).
We conclude that the deputy’s testimony at issue here is scientific and, consequently, that the trial court erred in denying defendant’s motion and admitting the testimony without a proper foundation, and we further conclude that the error was not harmless. Therefore, we reverse and remand defendant’s DUII conviction, and, because the record may develop differently on remand, we do not address defendant’s assignment of error regarding the denial of his request for a special jury instruction. Because defendant’s arguments on appeal pertain only to his DUII conviction, we affirm his conviction for failing to perform the duties of a driver.
I. HISTORICAL AND PROCEDURAL FACTS
The pertinent facts are not in dispute. While driving out of a parking lot, defendant struck another car and failed to immediately stop. Defendant eventually pulled into a different parking lot, where witnesses to the collision confronted him. Shortly thereafter, Deputy Dueñas arrived and spoke with defendant. Dueñas noticed that defendant was a little “standoffish” and did not seem to want him there. Dueñas also noticed that defendant had bloodshot, watery eyes and a “relaxed” look on his face. Dueñas smelled a moderate odor of alcohol on defendant. Dueñas asked defendant if he had been drinking, and defendant answered that he had had two bottles of beer one hour before. Dueñas asked defendant to perform FSTs, and defendant agreed. Dueñas administered the horizontal gaze nystagmus (HGN) test,
Based on Duenas’s observations and defendant’s performance on the FSTs, Dueñas arrested defendant and transported him to the police station. At the station, Dueñas tested defendant’s breath with the Intoxilyzer 8000, which requires two successful breath samples to provide a final test result. See OAR 257-030-0130(3).
Defendant was charged with DUII and failure to perform the duties of a driver. Before trial, defendant moved to prohibit Dueñas from testifying that defendant had “passed” or “failed” the walk-and-turn or one-leg-stand tests because those terms are scientific; they derive from a purported statistical correlation between exhibiting a certain number of clues on the test and having a high BAC. Defendant argued that “applying that ‘pass or fail’ [to a person’s performance on those FSTs] puts a scientific backing that doesn’t exist and isn’t tested.” He asserted that Dueñas could testify that defendant exhibited “six out of eight clues or eight out of eight clues [on a given test], but just not use the term, ‘pass’ or ‘fail.’” The state responded that “the officers can testify as to whether he passed or failed!,] ” because FSTs are “standardized test[s].” The trial court denied defendant’s request and allowed the state to introduce Duenas’s testimony about whether defendant passed or failed the FSTs without laying a scientific foundation for that testimony.
At trial, Dueñas testified about defendant’s performance on the FSTs. Specifically, he testified that defendant had exhibited four of eight possible “clues” on the walk-and-turn test: (1) He started before Dueñas told him to; (2) he was unable to maintain his balance while Dueñas gave him instructions; (3) he took eight steps before turning, instead of the required nine steps; and (4) he made an improper turn. In addition to describing those problems with defendant’s performance, Dueñas testified that that score meant that defendant had failed the test:
“Q. * * * You testified that [defendant] showed four out of eight clues on the walk and turn?
“A. Yes.
“Q. Is that a passing or failing score?
“A. Fail.”
Later, Dueñas testified to his opinion that defendant was impaired when he drove:
“Q. About how long were you with the defendant back on August 20th?
«* ‡‡‡‡
“A. Almost two hours, maybe?
“Q. Now based on your training аnd experience and your contact with the defendant that night, were you able to form an opinion as to the state of the defendant’s sobriety that night?
“A. Yes.
“Q. What was that opinion?
“A. That he was impaired to a noticeable and perceptible degree.”
On cross-examination, Dueñas testified that defendant’s motor skills did not appear to be impaired, defendant’s balance was intact, his speech was normal, and he behaved politely. Additionally, Dueñas admitted that, although defendant started the walk-and-turn test before Dueñas told him to, Dueñas had not instructed defendant to wait for his command before starting the test. Defense counsel also elicited Duenas’s testimony that defendant had passed the one-leg-stand test.
The state also introduced defendant’s “Breath Test Report.” The one-page report included two “subject samples”— a 0.082 BAC and a 0.079 BAC—and a “Test Result” of 0.07 BAC. Dueñas testified about defendant’s two breath samples, and, when asked what the final result was, Dueñas stated that “[t]he test result was a .07 percent BAC.” Similarly, on cross-examination, Dueñas testified that neither of the “subject samples” was official and that, instead, the 0.07 “Test Result” represented defendant’s official BAC.
Using retrograde extrapolation, the state’s forensic expert, Bessett, estimated defendant’s BAC at the time of driving. Bessett based his calculations off of the “subject samples” rather than the “Test Result.” According to Bessett, on the lower range, defendant’s BAC at the time of driving was the same as the “subject samples,” and on the
The jury convicted defendant of DUII and failure to pеrform the duties of a driver, and this appeal followed.
II. DISCUSSION
On appeal, defendant asserts that the trial court erred in denying his pretrial motion to exclude testimony that he “passed” or “failed” the walk-and-turn or one-leg-stand tests because that testimony was scientific and the state did not lay an adequate foundation for it. We begin by explaining the governing law, then we turn to the parties’ arguments.
A. Legal Framework
OEC 702, which governs the admission of expert testimony, provides, “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” In State v. Brown,
Eleven years later, in State v. O’Key,
Thus, in O’Key, the court recognized that there may be no definitive boundary between expert scientific evidence and expert evidence based on “technical or other specialized knowledge”—that is, as Mueller and Kirkpatrick contend, “[mjost expert testimony rests at least partly on science.”
Ultimately, in O’Key, the court explained that there was no present need to attempt to draw a firm line between expert scientific testimony and expert testimony based on “technical or other specialized knowledge”:
“We need not attempt precisely to distinguish ‘scientific’ from other types of expert testimony under the Oregon Evidence Code. For now, we hold that, in the absence of a clear case, a case for judicial notice, or a case of prima facie legislative recognition, trial courts have an obligation to ensure that proffered expert scientific testimоny that a court finds possesses significantly increased potential to influence the trier of fact as ‘scientific’ assertions is scientifically valid. This is especially true in cases where the proffered expert scientific testimony is innovative, nontraditional, unconventional, controversial, or close to the frontier of understanding.”
O’Key,
Thus, when proffered expert scientific testimony “possesses a significantly increased potential to influence the trier of fact as ‘scientific,’” a court must determine whether the evidence is sufficiently reliable to be admitted, applying the guidelines established in Brown and O’Key. The court’s assessment of the reliability of the evidence is necessary to “‘ensure [] that expert testimony does not enjoy the persuasive appeal of science without subjecting its propositions to the verification processes of science.’” O’Key,
Next, the O’Key court evaluated the expert testimony at issue—testimony about the HGN test—and concluded that the jury would perceive it as scientific. The court noted that “the HGN test is distinguished from other field sobriety tests because science, rather than common knowledge, provides the legitimacy for HGN testing.”
Thus, the court concluded that the jury would perceive HGN-test evidence as scientific because, unlike many other signs of alcohol consumption, the causal relationship between alcohol consumption and the nystagmus phenomenon was outside jurors’ common knowledge. Consequently, that “asserted scientific proposition” implied by the testimony had significantly increased potential to influence the jury as a “scientific” assertion.
O’Key demonstrates that attributes of a particular proposition implied by an expert’s testimony—its scientific underpinning, coupled with its unfamiliarity to the jury— may cause the jury to perceive the proposition, and, consequently, the testimony, as scientific. See also Jennings v. Baxter Healthcare Corp.,
Jurors also may perceive expert testimony as scientific because of attributes of the expert, rather than the particular explicit or implicit propоsition that the expert relies on; through her overall presentation, an expert may “announce!] to the factfinder that her testimony is ‘scientific, i.e., is grounded on conclusions that have been reached through application of a scientific method to collected data.’” State v. Marrington,
We have employed both of those methods of evaluating whether a jury will perceive evidence as “scientific.” See, e.g., State v. Dulfu,
We have also distinguished opinion evidence that is based exclusively on an expert’s training and experience from scientific evidence. We explained that distinction in State v. Rambo,
We concluded that “the trial court properly admitted the challenged testimony as nonscientific expert opinion evidence.” Id. at 192. We first explained that the defendant “does not challenge the admissibility of any of the underlying evidence upon which [the officer] based his ultimate opinion.” Id. That is, the defendant “implicitly acknowledge [d]” that the HGN and blood-alcohol-test evidence was admissible scientific evidence and that evidence of the defendant’s statements made during an interview and her performance on the FSTs was independently admissible. Id.
Instead, the defendant’s only challenge was to “the admissibility of [the officer’s] opinion, based on that underlying evidence, that defendant drove under the influence of a narcotic analgesic.” Id. The defendant argued that, because that opinion was based, in part, on scientific tests (the HGN test and the blood alcohol test) and couched in terms of the officer’s investigative accuracy rate, the jury would perceive that his opinion itself was scientific. Id. at 193.
We rejected the defendant’s argument, explaining that officers who have training and experience in recognizing signs of impairment can testify to their expert opinions of intoxication without first showing that the opinion-forming process was scientifically valid:
“[T]he evidence showed that [the officer] was qualified, by virtue of considerable training and experience, to recognize the symptoms of drug impairment in the course of a DUII investigation. Based on such training and experience, police officers can—and frequently do—testify as to their opinions of whether an individual was under the influence of alcohol or a controlled substance.”
Id. at 194.
Moreover, we concluded, the fact that the officer’s opinion relied in part on the results of scientific tests that had previously been recognized as reliable did not make the officer’s opinion itself scientific and in need of a scientific foundation: “The fact that [officers] may rely in part on independently admissible scientific evidence, such as blood alcohol content and HGN test results, to reinforce their opinions, does not render those opinions inadmissible as unqualified scientific evidеnce.” Id. at 195 (emphasis in original).
Ultimately, we explained, “[s]pecialized expert opinion evidence based on a witness’s training and experience draws its force from that training and experience, but not necessarily from the mantle of science.” Id. Because the officer “did not—apart from his reference to independently admissible scientific tests—rely on the vocabulary of science” and did not “suggest that his conclusions had been reached through the application of a scientific method to collected data,” and because the trial court had “scrupulously sanitized the record of any evidence of a scientifically based protocol,” the jury would not have perceived the officer’s opinion to be based on science. Id.
In summary, to be admissible, expert evidence must be relevant and helpful to the jury, and its probative value must not be substantially outweighed by the danger of unfair prejudice. Brown,
B. Parties’ Arguments
With that understanding of the law, we turn to defendant’s argument, which, as noted above, is that the trier of fact will perceive testimony that a person “passed” or “failed” the walk-and-turn or one-leg-stand test as scientific. At the outset, defendant concedes that testimony describing a subject’s performance on the walk-and-turn and one-leg-stand tests is not scientific evidence subject to the admissibility requirements of
That is, the walk-and-turn and one-leg-stand tests allow officers, and, through the officers’ testimony, the jury, to spot commonly known signs of intoxication. See id. (citing State v. Clark,
Against that backdrop, defendant’s argument is that, when an officer testifies that someone “passed” or “failed” the walk-and-turn test or the one-leg-stand test, the probative value of that testimony rests on a scientific proposition distinct from the commonly known signs of intoxication and from the officer’s practical expertise in identifying impairment. As explained above, both the officer and the jury can recognize signs of impairmеnt that a test subject might exhibit during performance of an FST. Moreover, if the officer has training and extensive experience administering FSTs to suspected impaired drivers, the officer may have practical expertise in recognizing when a test subject’s performance indicates impairment. Rambo,
In defendant’s view, the conclusion—“pass” or “fail”—relies on an external scoring rubric that does not derive from common understanding or the officer’s practical expertise. For the walk-and-turn test, the conclusion that a subject fails the test rests on the proposition that exhibiting two of a particular group of signs of impairment during performance of the test indicates that the
In support of his argument, defendant relies on cases from other jurisdictions, which have held that, although, as a general matter, an officer’s testimony regarding a driver’s conduct during FSTs does not require a scientific foundation, testimony that the driver “passed” or “failed” the FSTs does require such a foundation because it will be perceived as scientific by the jury. For example, in State v. Meador, 674 So 2d 826, 832-33 (Fla App 1996), the court explained that using terms such as “pass,” “fail,” and “points” “creates a potential for enhancing the significance of the [officer’s] observations” because the terms give “an aura of scientific validity” to the observations. Similarly, in Horn,
“[t]o interject into this essentially descriptive process technical terminology regarding the number of ‘standardized clues’ that should be looked for or opinions of the officer that the subject ‘failed’ the ‘test,’ especially when such testimony cannot be shown to have resulted from reliable methodology, unfairly cloaks it with unearned credibility.”
Thus, defendant concludes, the term “fail,” along with the term “pass,” is scientific testimony for which the state must lay an adequate foundation. Accordingly, defendant argues, the trial court erred in allowing the testimony without any foundation.
The state responds that the trial court correctly denied defendant’s motion to exclude testimony that he passed or failed the walk-and-turn and one-leg-stand tests. The state argues that the terms “pass” and “fail” are not scientific because they are “ordinary words of common understanding that are used in many contexts outside the scientific realm.” Here, in the state’s view, the terms “merely stand as shorthand for the officer’s testimony regarding whether defendant’s performance on the test demonstrated sufficient
The state also argues that, because the walk-and-turn and one-leg-stand tests are based on “principles easily recognized or understood by most people,” Duenas’s use of the term “fail” did not affect the jury’s ability to weigh and evaluate Duenas’s opinion based on the evidence.
In support of its argument, the state relies on State v. Shadden, 290 Kan 803, 825-29,
C. Admissibility
We review for legal error the trial court’s determination that expert testimony was not scientific evidence. Marrington,
As we understand it, the state’s main contention is that Dueñas was entitled to offer his opinion that defendant’s performance on the FSTs demonstrated that he was impaired, and Duenas’s use of the term “fail” was merely a shorthand way for Dueñas to exprеss that opinion. As explained above, the state is correct that Dueñas was entitled to offer his nonscientific expert opinion, based on his training and experience, that defendant was impaired. Rambo,
As the prosecutor stated at the hearing on defendant’s motion, the FSTs at issue are “standardized tests.” In this context, “standardize” means “to arrange or order the component items of a test * * * so that the probability of their eliciting a designated class of response varies with some quantifiable psychological or behavioral attribute, function, or characteristic.” Webster’s Third New Int’l Dictionary 2223 (unabridged ed 2002), see also id. at 2224 (defining “standard test” as a test “whose reliability has been established by obtaining an average score of a significantly large number of individuals for use as a standard of comparison”). Thus, as proffered by the state, and as would be understood by the jury, the terms “pass” and “fail” imply that there is a correlation between “a designated class of response” to the test prompts—that is, the presence of a certain number of clues—and “some quantifiable psychological or behavioral attribute”—that is, intoxication—and that that correlation has been verified by application of the scientific method.
In this case, separately from describing defendant’s performance on the walk-and-turn test, Dueñas testified that defendant showed four out of eight possible clues on the test.
In stating that defendant “failed” the test, Dueñas did not merely express his own opinion that defendant was impaired based on the particular deficiencies in defendant’s performance.
The state suggests that, although the evidence concerned defendant’s score on a standardized test and was offered to prove intoxication, a jury would not perceive the evidence as scientific. According to the state, “[a] jury simply would understand the plain meaning” of the term “fail” as “deficient, inadequate, or unsuccessful.”
We disagree. A jury’s understanding of whether testimony is scientific is not based exclusively on whether the expert witness uses scientific-sounding jargon or words that are susceptible to only scientific meanings. Juries are capable of recognizing scientific substance when they hear it. Sampson,
Expert testimony that implicitly rests on scientific propositions can have just as much persuasive power as testimony that makes its scientific backing explicit. That is, the fact that an expert who explicitly relies on her scientific education and uses scientific jargon “announces to the factfinder that the basis of her testimony is ‘scientific." Marrington,
Here, a jury would perceive the proposition underlying the testimony that a defendant “failed” the walk-and-turn test or one-leg-stand test as scientific. As we have explained, the proposition underlying that testimony is that the test is able to measure impairment objectively and that a specific numerical score can prove that the subject is impaired. As defendant points out, that proposition is grounded in scientific research. Moreover, that proposition is distinct from, and cannot be derived from, commonly recognized signs of impairment or the more detailed understanding of signs of impairment that an officer obtains from his or her
Some simple factual propositions are easily enough arrived at through training and experience that jurors will not perceive them as scientific—e.g., an officer’s knowledge that red, “‘spider web’ eyes” indicate recent marijuana consumption. Wilson,
In short, our task is to discern whether, when an officer testifies that a defendant “failed” the walk-and-turn or one-leg-stand test, the jury will think that science supports the propositions that alcohol impairment can be objectively measured through the walk-and-turn and one-leg-stand tests and that the defendant’s performance showed that he was objectively impaired. We conclude that, using their ordinary powers of deduction, jurors will think so. Accordingly, the state here had to establish that, in fact, alcohol impairment is reliably measured through the walk-and-turn and one-leg-stand tests before introducing the testimony that defendant “failed” the tests to prove that he was impaired.
D. Harmlessness
Finally, we evaluate whether the trial court’s error in admitting the evidence was harmless. See OEC 103(1) (an evidentiary error does not require reversal unless the error is prejudicial). “We will affirm a defendant’s conviction if there is little likelihood that erroneously admitted evidenсe affected the verdict.” State v. Whitmore,
Here, the central factual issues, for purposes of defendant’s DUII conviction, were whether defendant had a BAC of .08 or above or was “under the influence of intoxicating liquor” when he drove. ORS 813.010(1) (“A person commits the offense of [DUII] if the person drives a vehicle while the person: (a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person *** [or] (b) Is under the influence of intoxicating liquor ***.”). As we have explained, in testifying that defendant failed the walk-and-turn test, Dueñas indicated to the jury that the walk-and-turn test measures impairment objectively and that defendant’s performance showed, based on an objective scoring rubric, that he was impaired. Thus, the testimony bore directly on whether defendant was “under the influence of an intoxicating liquor.” ORS 813.010(l)(b).
As noted above, and as demonstrated by the Supreme Court’s discussion of scientific evidence in O’Key, scientific evidence has manifest potential to influence the jury; that persuasive effect is the reason that scientific evidence must meet the Brown/O’Key factors before it is admitted. Thus, here, when Dueñas testified that defendant’s performance on the walk-and-turn test was objectively a failure, he presented evidence that had persuasive value apart from Duenas’s observations and his opinion that defendant was impaired. See Whitmore,
The state’s evidence of defendant’s BAC was not so overwhelming that we can be confident that the jury would not have considered whether defendant was “under the influence of an intoxicating liquor.” ORS 813.010(l)(b). The state presented defendant’s intoxilyzer results—two numbers, 0.082 and 0.079 that represented separate “blows,” and a “final result” of 0.07 percent—and testimony from a forensic scientist that, using retrograde extrapolation, he had calculated that defendant’s BAC could have been over the legal limit of 0.08 percent when he drove. However, as noted, the “final result” of the intoxilyzer test was 0.07 percent, and the forensic scientist acknowledged that, when defendant drove, his BAC could have been the same as the intoxylizer samples. Given that evidence, the jury may well have had reasonable doubt that defendant’s BAC was 0.08 or above and, instead, evaluated whether defendant was under the influence of alcohol.
On that question, the evidence likewise was not overwhelming. The state presented evidence from Dueñas that defendant admitted to drinking two beers prior to driving, had a “moderate odor” of alcohol, had a relaxed look and watery eyes, was standoffish at first, failed the HGN test, and displayed a variety of clues indicating intoxication on the walk-and-turn test and one clue on the one-leg-stand test. However, Dueñas also testified that defendant’s motor skills and balance were intact, his speech was normal, and his demeanor was polite. As noted above, our focus in evaluating harmlessness “is on the possible influence of the error on the verdict rendered, not whether this court, sitting as factfinder, would regard the evidence of guilt as substantial and compelling.” Davis,
Conviction for driving under the influence of intoxicants reversed and remanded; otherwise affirmed.
Notes
The HGN test detects whether a person’s eyes demonstrate horizontal gaze nystagmus under certain conditions. Horizontal gaze nystagmus is the “inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bounding).” State v. O’Key,
The main factors set out in Brown are:
“(1) The technique’s general acceptance in the field;
“(2) The expert’s qualifications and stature;
“(3) The use which has been made of the technique;
“(4) The potential rate of error;
“(5) The existence of specialized literature;
“(6) The novelty of the invention; and
“(7) The extent to whiсh the technique relies on the subjective interpretation of the expert.”
Id. at 417. In a footnote, the court set out additional factors. Id. at 417 n 5.
In O’Key, the court identified four other factors, which “overlap, to some degree, with the seven factors set out in Brown.” State v. Southard,
The citation in an attached footnote recognized that there may be no definitive boundary between “scientific” evidence and evidence based on “technical or other specialized knowledge”:
“See also Daubert v. Merrell Dow Pharmaceuticals,509 US 579 , ---,113 S Ct 2786 , 2800,125 L Ed 2d 469 , 487 (1993) (Rehnquist, C. J., concurring in part and dissenting in part) (suggesting that there is no clear demarcation between scientific, technical, and specialized knowledge).”
O’Key,
Cf. Kumho Tire Co., Ltd. v. Carmichael,
Despite the Supreme Court’s suggestion in O’Key that there is no firm dividing line between scientific and other expert testimony, no Oregon appellate opinion has addressed an argument that courts should apply the factors set out in Brown and O’Key, or some similar test for reliability, to propositions underlying expert testimony based on “technical or other specialized knowledge.” OEC 702; see State v. Sanchez-Cruz, 177 Or App 332, 337 n 4,
The DRE protocol “is a 12-step procedure performed by a trained officer that purports to determine whether a subject is under the influence of a controlled substance.” Sampson,
The opinion describes the testimony about FSTs as follows:
“[The officer] administered a modified Romberg sobriety test, where defendant estimated the passage of time accurately but had some circular sway in her stance. [The officer] had observed those results with people who were under the influence of a narcotic analgesic. During a walk and turn test, defendant had difficulty maintaining the correct instructional position and maintaining a proper heel-to-toe walk. During a one-legged stand test, defendant had difficulty balancing and counted 23 seconds as 30 seconds. According to [the officer], of the seven recognized drug categories, only narcotic analgesics and central nervous system depressants cause an internal clock slowdown. Defendant also missed her nose several times when [the officer] conducted a finger-to-nose test.”
Cf. State v. Clemens,
In Mazzola, the Supreme Court’s explanation of the rationale behind admitting evidence of performance on FSTs in a DUII prosecution ties the commonly known effects of alcohol that each test reveals to the ultimate legal question of impairment—that is, ability to drive (or lack thereof):
“‘Psychomotor [field sobriety tests] test balance and divided attention, or the ability to perform multiple tasks simultaneously. While balancing is not necessarily a factor in driving, the lack of balance is an indicator that there may be other problems. Poor divided attention skills relate directly to a driver’s exercise of judgment and ability to respond to the numerous stimuli presented during driving. The tests involving coordination (including the walk- and-turn and the one-leg-stand) are probative of the ability to drive, as they examine control over the subject’s own movements.’”
Defendant argues:
“The [walk-and-turn (WAT)] and [one-leg-stand (OLS)] field tests were developed in the 1970s and ‘80s when [the National Highway Transportation Safety Administration (NHTSA)] sponsored research by psychologists Marcelline Burns and Herbert Moskowitz, among others. NHTSA, Development of a Standardized Field Sobriety Test, http://www.nhtsa.gov/people/ injury/aleohol/sfst/introduction.htm, (last visited February 24, 2014). That research was reexamined in ‘validation studies’ during the 1980s and ‘90s. Horn,185 F Supp 2d at 535-36 .
“NHTSA training materials rely on research and conclusions by psychologists like Moskowitz and Burns to validate the WAT and OLS tests. For example, the 2006 NHTSA Standardized Field Sobriety Testing manual describes psychophysical tests like the WAT and OLS, stating, ‘The most significant psy-chophysical tests are the three scientifically validated structured tests that you administer at roadside.’ NHTSA, DWI and Standardized Field Sobriety Testing (2006) at VII-1, http://oag.dc.gov/publication/2006-nhtsa-sfst-manual (emphasis added). The manual notes, ‘Original research shows that if a suspect exhibits two or more of the clues [on the WAT test], or cannot complete the test, the suspect’s BAC is likely to be above 0.10. This criterion has been shown to be accurate 68 percent of the time.’ Id. at VII-6 (emphasis in original); see Horn,185 F Supp 2d at 537-38 (citing similar language in a NHTSA training manual). The NHTSA manual also states that ‘laboratory research’ indicates that the HGN, WAT, and OLS tests are ‘a highly accurate and reliable battery of tests for distinguishing BACs above 0.10 []’ Id. at VIII-1.”
(Third through fifth insertions in defendant’s brief; footnote omitted.)
Defendant also argues that the testimony was not admissible because the state could not have laid an adequate foundation under Brown and O’Key showing that the proposition on which the conclusion of passage or failure relies is the product of a reliable and verifiable scientific methodology. Because we agree with defendant that the testimony was scientific and it is undisputed that the state did not lay any foundation for the testimony in this case, we do not consider that question here. See State v. Whitmore,
Because the disputed ruling here was made pretrial, Duenas’s testimony was not before the trial court when it made its decision. Nevertheless, because it is demonstrative of the type of testimony that defendant sought to exclude— and because the discussion of defendant’s pretrial motion demonstrates that both parties and the court understood that—it is helpful to our analysis by way of example.
To the extent that an officer might use the word “fail” as shorthand referring to his or her own idiosyncratic determination of whether a defendant was impaired, we again note that it was clear from the argument on defendant’s motion that what he sought to exclude was testimony (like the testimony that Dueñas ultimately gave) that relied on an external scoring rubric to show that defendant was objectively, measurably impaired. As explained in the text, we agree that such testimony was inadmissible in the absence of a Brown/O’Key foundation. If the court had granted defendant’s motion to exclude such testimony and Dueñas had sought to use the word “fail” as shorthand for his own view, the parties could have litigated whether, and what, additional explanation would he required to make that testimony admissible under the court’s pretrial ruling.
The dissent argues that Duenas’s additional testimony that he does not always arrest a driver who fails the walk-and-turn test undercuts our conclusion that the term “fail” implies that there is a correlation between the presence of a certain number of clues on the walk-and-turn test and impairment and that that correlation has been verified by application of the scientific method.
Second, while we acknowledge that the fact that Dueñas does not rely solely on a person’s failure of the walk-and-turn test as a basis for arrest may undercut the persuasiveness of the underlying proposition—that the test measures impairment accurately—contrary to the dissent’s view, it does not suggest that the conclusion of “failure” was merely Duenas’s own opinion. It suggests the opposite: It shows that Duenas’s statement that defendant failed the test does not express Duenas’s own opinion that defendant was impaired. Given that, we do not understand what subjective opinion Dueñas could have been expressing by his testimony that defendant’s score of “four out of eight clues” was a “failing score.”
To the extent that the state is arguing that admission of a small amount of scientific evidence would not affect the jury’s consideration of the evidence as a whole, that is an argument that any error is harmless, and, accordingly, we do not consider it here.
The dissent asserts that those cases are distinguishable because
“juries will understand that science is involved when a witness testifies about such things as distance measurement by lidar and measurement of alcohol impairment through HGN testing. But that is because those topics by their very nature ‘purport!] to draw [their] convincing force from a principle of science’ and have value that ‘depends critically on the demonstrated scientific validity’ of that principle. The significance of those testing mechanisms and their results lies outside the common knowledge of lay persons.”
As explained in the text, we disagree that Duenas’s testimony was confined to propositions of common knowledge, because he also testified to the conclusion that a test subject “fails” the test by exhibiting a specific number of standardized clues. Certainly, from testimony describing a subject’s performance on a test, the jury will be able to assess whether he or she performed well or poorly. However, that ability to evaluate performance is different from the knowledge that exhibiting two or more clues is a “failing score.” That a subject “fails” the test if he or she exhibits two clues is not within the realm of common knowledge.
Moreover, in our view, in Marrington, the Supreme Court rejected the distinction that the dissent draws between lidar and HGN testing, on the one hand, and the propositions underlying the conclusion that someone has failed the walk- and-turn test, on the other hand. The court explained that “expert testimony concerning matters within the sphere of the behavioral sciences possesses increased potential to influence the trier of fact as scientific assertions, just as expert testimony dealing with the ‘hard’ sciences does.”
The dissent characterizes our holding here as being that the jury would “perceive the proposition that defendant failed a walk-and-turn test to be based on science.”
That understanding of the proper analysis also leads us to disagree with the dissent’s reliance on the facts that “Dueñas did not expound on why a person fails the walk-and-turn test if he or she exhibits four clues,” that he “did not inform the jury that the failing score was based on a scoring rubric developed through research sponsored by NHTSA” and that “he did not testify that the score was based on the application of a scientific method to collected data” to conclude that the jury would not understand the testimony as “scientific.”
Regarding the cases from other jurisdictions relied upon by the state, we note that the broader challenges in those cases—challenges to a wide variety of terms even including “impairment”—make much of those courts’ reasoning inapposite here, where defendant challenges only the use of “pass” and “fail.” Moreover, we find the cited reasoning unpersuasive because, as explained in the text, use of the terms “pass” and “fail” is not “nothing more than descriptive” of a subject’s performance on the test. An officer’s testimony about the subject’s behavior during the test, as well as the officer’s practical expert opinion on whether that behavior, together with the officer’s other observations, indicated that the subject was impaired, are “descriptive” of the subject’s performance. In our view, the addition of the term “fail” superimposes on the officer’s otherwise descriptive testimony an external scientific conclusion offered to prove that the test subject is objectively, measurably impaired.
We do agree with the court in Campoy that terms like “pass” and “fail” “make plain the tests’ purpose as indicators of impairment.” 214 Ariz at 136,
Dissenting Opinion
dissenting.
The majority has comprehensively and accurately reviewed the Oregon case law related to the admissibility of scientific evidence. See
As part of his investigation of whether defendant had committed the crime of driving under the influence of intoxicants (DUII), Deputy Dueñas administered three field sobriety tests (FSTs). At trial, Dueñas testified about defendant’s performance on those tests. First, Dueñas explained how the horizontal gaze nystagmus (HGN) test works, described his observations of defendant’s eye movements, and asserted that defendant had exhibited six out of six clues on that test, meaning that he had failed it.
On direct examination by the prosecutor, Dueñas then described the walk-and-turn FST, which he explained is “broken up into an instructional phase and a walking phase”:
“The first part of the test is to set the—have the person stand with his right foot in front of his left in a heel to toe fashion with his arms at his side and to remain in that position until I’m done explaining the rest of the test, i.e., the walking test.
“Q. And after you explain the test, what do you do next?
“A. After I explain the walking test, I watch the defendant and make sure he takes the necessary steps. The nine steps before the turn and the nine steps after the turn. I’m making sure that he keeps his hands to his side. He doesn’t stop walking, that he continues walking heel to toe and I should backtrack. He’s doing this on a line. In this case, [defendant] was doing it on an imaginary line and I’m making sure that he stays on that line.”
Dueñas then described defendant’s performance on the test, explaining that defendant had started to walk before Dueñas told him to, that—after Dueñas told him to wait until Dueñas had explained the rest of the test— defendant moved his foot “like he couldn’t maintain his balance”, that defendant then took eight steps instead of nine, and that defendant “did an improper turn,” not in the way that Dueñas had demonstrated. Dueñas explained that he looks for “eight clues” in observing a рerson’s performance on the walk-and-turn test, and he testified that defendant exhibited four of those clues:
“A. He started too soon, unable to maintain balance in the instructional phase, the improper number of steps for the first set of nine steps and the improper turn.
“Q. But generally, as he was walking performing the nine steps down that imaginary line, he did pretty well on that?
“A. Yes.”
Defendant does not contend that any of that testimony should have been excluded.
The prosecutor then asked Dueñas about the third FST that he administered to defendant, the one-leg-stand test. Again, Dueñas explained the physical motions that the test involves, primarily raising one foot off of the ground with a pointed toe. Defendant showed only one clue on that test, putting his foot down once after he had succeeded in standing on one leg for between 21 and 30 seconds.
At that point, the prosecutor realized that he had forgotten to ask Dueñas about defendant’s “score” on the walk-and-turn test.
“Q. And I should back up, I apologize I forgot to ask this. You testified that he showed four out of eight clues on the walk and turn?
“A. Yes.
“Q. Is that a passing or a failing score?
“A. Foil”
(Emphasis added.)
It is the last word of that testimony—“Fail”—to which defendant objected below and which the majority concludes requires reversal of his conviction. According to the majority, Duenas’s testimony that defendant failed the walk-and-turn test is “scientific evidence” for which a foundation had to be laid under State v. Brown,
The majority observes, correctly, that Duenas’s conclusion that defendant failed the walk-and-turn test was based on a scoring rubric developed through research and tеsting sponsored by the National Highway Transportation Safety Administration (NHTSA).
I disagree because, in my view, Duenas’s testimony would have conveyed nothing more to the jury than his own conclusion—based on his observations of defendant’s lack of balance and difficulty following instructions—that defendant had failed the walk-and-turn test, which Dueñas took into account in assessing whether defendant was impaired. Nothing in Duenas’s testimony would have led the jury to believe that there was a scientific basis for his conclusion that defendant had failed the test. Accordingly, and as explained in more detail below, I would affirm the trial court on the basis that Duenas’s testimony was not scientific evidence
As the majority explains, courts serve a gate-keeping function with respect to scientific evidence because of the danger that “jurors would view the evidence as having ‘an unusually high degree of persuasive power’ becаuse of the perception that it is based on scientific assertions [.] ” State v. Dulfu,
In this case, Dueñas explained to the jury—in testimony that the majority acknowledges was admissible and not “scientific”—that defendant had exhibited four clues in taking the walk-and-turn test. Dueñas then testified that defendant’s score on that test was “Fail,” and he later elaborated, on cross-examination, that a person fails the walk-and-turn test if he or she exhibits at least two clues. Dueñas also testified that, based on his training and experience, he would not arrest a person solely on the basis that the person had exhibited two clues on the walk-and-turn test. Rather, Deunas suggested that he would take “everything” into account.
Beyond that, Dueñas did not inform the jury of the basis for his conclusion that defendant had failed the test. That is, Dueñas did not expound on why a person fails the walk-and-turn test if he or she exhibits four clues by starting the test before being told to do so, not maintaining balance, taking an incorrect number of steps, and making an improper turn. Dueñas did not inform the jury that the failing score was based on a scoring rubric developed through research sponsored by NHTSA, he did not testify that the score was based on the “‘application of a scientific method to collected data.'"
Given that context, I see no basis for concluding, as the majority does, that the jury would have understood that Duenas’s “preposition to be based on science” and that “there is a correlation between the * * * presence of a certain number of clues [on the walk-and-turn test]—and *** intoxication—and that that correlation has been verified by application of the scientific method.”
I agree with the majority that there can be situations where the jury will perceive that an expert witness’s testimony is based on science even when the expert does not explicitly say so. The examples the majority supplies are apt: juries will understand that science is involved when a witness testifies about such things as distance measurement by lidar and measurement of alcohol impairment through HGN testing.
Here, in contrast, Dueñas testified only to “propositions of common knowledge” in describing the four ways in which defendant performed poorly on the walk-and-turn test, exhibiting a lack of balance and difficulty following Duenas’s instructions. And neither Duenas’s testimony nor any other evidence admitted at trial would have suggested to the jury that Duenas’s determination that defendant failed the test was based on the sort of science-based protocol that a jury might give extra weight.
In that regard, this case is analogous to Rambo, in which the defendant challenged a drug recognition expert (DRE) officer’s testimony that the defendant’s performance on several sobriety tests indicated that she was under the influence of narcotic analgesics.
Similarly here, although application of a science-based protocol formed the underlying basis of Duenas’s conclusion that defendant’s performance on the walk-and-turn test indicated a failure on that test, no evidence in the record would have suggested that fact to the jury. Moreover, defendant’s performance on the walk-and-turn .test itself was a matter within the jury’s ability to assess using common knowledge of the effects of alcohol intoxication. O’Key,
For those reasons, I disagree with the majority’s conclusion that Duenas’s testimony that defendant failed the walk-and-turn test was scientific evidence that was inadmissible without a proper Brown/O’Key foundation. I respectfully dissent.
Defense counsel asked Dueñas on cross-examination whether “a specific part of the NHTSA manual is to instruct [the person taking the FST] not to start and then you observe after that if they start in violation of your rules?” Dueñas answered affirmatively. But even that reference to the NHTSA manual, elicited by defense counsel, did not inform the jury that NHTSA had developed the FSTs or that those tests were based on scientific research.