State v. Rambo

279 P.3d 361, 250 Or. App. 186, 2012 WL 1950414, 2012 Ore. App. LEXIS 694
CourtCourt of Appeals of Oregon
DecidedMay 31, 2012
Docket080748531; A143380
StatusPublished
Cited by23 cases

This text of 279 P.3d 361 (State v. Rambo) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rambo, 279 P.3d 361, 250 Or. App. 186, 2012 WL 1950414, 2012 Ore. App. LEXIS 694 (Or. Ct. App. 2012).

Opinion

BREWER, J.

Defendant appeals from a judgment convicting her, after a jury trial, of driving under the influence of a controlled substance, ORS 813.010, reckless driving, ORS 811.140, and failure to appear on a criminal citation, ORS 133.076. In a single assignment of error, defendant asserts that the trial court erred in admitting as nonscientific expert opinion evidence or, alternatively, as lay opinion evidence, a police officer’s testimony that, in his opinion, defendant had driven her vehicle while under the influence of a narcotic analgesic. We affirm.

Defendant was arrested for the charged offenses by Officer McKinlay, who stopped her vehicle after observing various problems with her driving. McKinlay made certain observations and performed field tests, after which he concluded that defendant was impaired by a substance other than alcohol. McKinlay then arrested defendant and transported her to a police station for additional testing. At the station, another officer administered a Breathylizer test to defendant. During questioning leading up to the test, defendant admitted to “bad” driving and having taken 70 milligrams of methadone. The breath test indicated a 0.0 percent blood-alcohol content (BAC). Defendant also provided a urine sample, but, because the sample was clear and cold, the officer did not believe that it was urine. When he asked defendant to submit a second sample, she refused.

Defendant was next examined by Officer Johnson, a drug recognition evaluation (DRE) expert. Johnson testified in an offer of proof at a pretrial hearing to determine the admissibility of his testimony. Johnson had extensive training both in class and with live participants and had undertaken more than 1,000 DUII investigations. Johnson was an instructor at the police academy, where he taught about drug categories and symptomology. He is required to maintain an 80 percent accuracy rate of detecting intoxication.

Pursuant to the DRE testing procedure, Johnson conducted various sobriety tests that had been clinically tested by the National Highway Traffic Safety Administration (NHTSA) and were a “standard for investigating DUII [188]*188and whether it be controlled substances or alcohol.” Among other components, he conducted horizontal gaze nystagmus (HGN) and vertical gaze nystagmus (VGN) tests that' reflected that defendant had no nystagmus, a finding that was consistent with being under the influence of a narcotic analgesic. He also administered a modified Romberg sobriety test, where defendant estimated the passage of time accurately but had some circular sway in her stance. Johnson 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 Johnson, 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 Johnson conducted a finger-to-nose test. Johnson also observed that defendant had constricted pupils, which, of all the drug categories, could only be caused by narcotic analgesics.

At two separate points in his examination, Johnson checked defendant’s pulse rate, which was low enough in his estimation to indicate narcotic analgesic use. He also checked defendant’s blood pressure and body temperature and found them to be low, again indicating narcotic analgesic use. Johnson then tested the dilation of defendant’s pupils when she was placed in a dark room. He found that her pupils were smaller than normal, indicating narcotic analgesic use. He next examined her muscles and determined that they were looser than one would expect absent narcotic analgesic use. Johnson also observed older needle marks on defendant’s body. In addition, defendant admitted to Johnson that she had taken 70 milligrams of methadone pursuant to her doctor’s orders. Johnson performed 11 steps of the 12-step process for conducting a DRE. Johnson did not assess the results of the urine test. Johnson concluded, on the basis of his tests, his interaction with defendant, and defendant’s statements, that defendant was under the influence of a narcotic analgesic. According to Johnson, the absence of a urinalysis was immaterial to the formation of his opinion, because he had [189]*189reached that opinion long before urinalysis results could have been obtained from the state crime laboratory.

After the state made the foregoing offer of proof at the pretrial hearing, defendant objected to the admission of Johnson’s testimony about the DRE protocol and any opinions that he had reached based on his administration of that protocol. Defendant asserted that, because Johnson failed to obtain the results of a urinalysis, the protocol was incomplete, and evidence of his opinion was inadmissible under this court’s decision in State v. Aman, 194 Or App 463, 95 P3d 244 (2004), rev dismissed as improvidently allowed, 339 Or 281 (2005). The state countered that Johnson’s opinion was admissible either as nonscientific expert testimony or lay opinion testimony. Defendant replied that the evidence was not admissible on the bases for which the state advocated because, regardless of labeling, the DRE protocol was scientific evidence. Moreover, defendant asserted that the evidence was inadmissible under OEC 403 because of its unfairly prejudicial effect insofar as it bore a false imprimatur of science.

In a lengthy and carefully reasoned ruling, the trial court concluded that, because no urinalysis results were assessed, Johnson could not testify to any of the DRE protocols, either specifically or as a whole. However, the court ruled that, if an adequate foundation was laid, Johnson could testify to his opinion based on and relating to defendant’s blood alcohol content, her statements, the HGN test, her performance on the field sobriety tests, her pupil size, and the needle injection sites on her body. The court concluded that such an opinion was admissible as nonscientific expert opinion evidence or, alternatively, as lay opinion evidence. In contrast, the court excluded opinion evidence based on defendant’s pulse rate, temperature, the dark room test, and the muscle examination under OEC 403, on the ground that the unfairly prejudicial effect of that evidence, insofar as it suggested a scientific basis, substantially outweighed its probative value.

At trial, Johnson opined, based on the evidence that the court ruled admissible, that defendant had driven under [190]*190the influence of a narcotic analgesic. As noted, the jury convicted defendant. On appeal, the parties reprise their arguments before the trial court.

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.” State v. Sampson, 167 Or App 489, 491, 6 P3d 543, rev den, 331 Or 361 (2000). We have described those steps as follows:

“1. A blood alcohol content (BAC) analysis is done.

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Cite This Page — Counsel Stack

Bluebook (online)
279 P.3d 361, 250 Or. App. 186, 2012 WL 1950414, 2012 Ore. App. LEXIS 694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rambo-orctapp-2012.