State v. Trujillo

353 P.3d 609, 271 Or. App. 785, 2015 Ore. App. LEXIS 771
CourtCourt of Appeals of Oregon
DecidedJune 17, 2015
Docket120850169; A153218
StatusPublished
Cited by9 cases

This text of 353 P.3d 609 (State v. Trujillo) 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. Trujillo, 353 P.3d 609, 271 Or. App. 785, 2015 Ore. App. LEXIS 771 (Or. Ct. App. 2015).

Opinion

DEVORE, J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010(1), and reckless driving, ORS 811.140. We reject, without further discussion, defendant’s first and second assignments of error in which he challenges the trial court’s denial of his motion for a judgment of acquittal.1 In his third assignment of error, defendant challenges the admission of an expert’s testimony regarding retrograde extrapolation to determine blood-alcohol content (BAC) at the time of driving.2 He contends that retrograde extrapolation should be inadmissible because it is not scientifically reliable and that, even if the evidence might be admissible in some cases, the state did not establish an adequate foundation for use of the evidence. “We review rulings as to whether evidence is scientific and whether it is admissible as such for errors of law.” State v. Ohotto, 261 Or App 70, 71, 323 P3d 306 (2014). We review the facts underlying the admissibility of scientific evidence de novo. State v. Branch, 243 Or App 309, 314, 259 P3d 103, rev den, 351 Or 216 (2011). We affirm.

I. BACKGROUND

The facts are undisputed. At around 9:00 a.m. on August 26, 2012, a security officer noticed defendant wandering around a Portland SmartPark garage. Between 9:50 and 10:00 a.m., a garage employee saw defendant on foot, and, soon thereafter, he saw defendant’s red car come down the ramp, pull up to the exit gate arm, pause for a few seconds, and quickly reverse back up the ramp in the wrong direction. Defendant’s car smashed into an unused pay booth.3 Defendant turned his car around and drove up into [787]*787the garage. When the police and security officers searched the garage, defendant was nowhere to be found.

Later that day, the security officer saw defendant walking outside the garage. The security officer summoned Officer Payton. Payton noticed that defendant was slightly swaying, smelled of alcohol, and had watery, bloodshot eyes. Defendant told Payton that he had backed into the pay booth, he had seen someone running after his car, he had not stopped, he had assumed that the police were called, and he had walked down the garage stairs to calm down.

Payton arrested defendant and took him to the police station, where he failed four of six field sobriety tests. Defendant said that he had had “four or five [drinks] at the bar” but had stopped drinking at 2 a.m. that morning. About two and one-half hours after the garage incident, an Intoxilyzer test at 12:36 p.m. revealed defendant’s BAC to be 0.06 percent. Defendant was charged with one count ofDUII, three counts of failure to perform duties of a driver when property is damaged, and one count of reckless driving.4

At trial, the state sought to offer the testimony of a forensic scientist from the Oregon State Police Crime Lab, relating to defendant’s intoxication. During an evidentiary hearing under OEC 104, the expert, Bessett, described his training in the field, his college degree in biology, his professional training programs, and twelve years of professional experience working in toxicology. ORS 40.030(1) (OEC 104) (preliminary questions concerning the qualification of a person to be a witness).

Bessett testified that in order to perform a “retrograde extrapolation” — to “estimate a person’s BAC at a previous time” — he needed a time of the breath or blood test, a time that the drinking began, and a time of the “incident or the time of where you want the retrograde extrapolation to be.”5 He explained that retrograde extrapolation should be given as “a range,” because the unrealistic certainty of [788]*788a “specific point” would risk an incorrect result or a high failure rate. When asked whether the technique of retrograde extrapolation is accepted in forensic science, Bessett testified:

“Yes. As long as the person is qualified, trained and the person does not give the retrograde extrapolation to an exact result, meaning that I cannot say with a 100 percent certainty that somebody who blew a .06, let’s say, at 3:00 a.m., that they were — they had to be a .15 at 9:00 p.m. That’s unscientific because there’s a lot of variables.
“Each person is different. People’s livers work at different rates. A person’s liver even works at different rates on different evenings. So * * * what is known * * * through the peer-reviewed published studies is that the liver works in a range, meaning most, almost all people, drinkers that is, will eliminate alcohol between a .01 percent per hour and a .025 percent per hour.
"*****
“[T]hese are normal drinkers, not children, and these are not people with excessively high BACs, let’s say of a .3, .4, .5 or higher. People who reach that amount, that high of a BAC, are probably two things, chronic alcoholics or that they binge drink, and when * * * you reach that high of a BAC your liver can work much faster than that .025 range, can be at .03, .04, .05.
“So I used a .01 to .025 for the majority or vast majority of people except for those excessively high BACs or chronic alcoholics that are up there quite often.”

When asked whether the analysis has a high failure rate, Bessett explained,

“If a person has enough information and gives a range, * * * I can be really confident that the person fits somewhere in that range based on peer-reviewed published material.
"*****
“I try to limit the error by giving a large range and factoring in as much as I can and having known values.”

Bessett reiterated that “people absorb alcohol differently,” resulting in a range of possible BAC values that could have existed “back in time.”

[789]*789Bessett discussed how the Widmark formula is used in performing retrograde extrapolation. That formula applies a mathematical equation using the “extrapolation time” and the time of the breath test. Certain variables such as the last time the person drank alcohol are significant. And, no drinking should have occurred after the traffic stop or incident. Bessett described how an estimate can be deduced about the number of drinks a person had consumed, “plus or minus 20 percent” due to individual variables. He testified that the formula is generally accepted in his field.

Defendant asserted that the retrograde extrapolation evidence should not be admitted at trial. He contended that Bessett “has not met the Brown /O’Key standards.” State v. Brown, 297 Or 404, 687 P2d 751 (1984); State v. O’Key, 321 Or 285, 899 P2d 663 (1995). He argued that the proper foundation for validity of scientific evidence had not been established and that a number of the Brown and O’Key factors did not weigh in favor of the evidence’s admissibility. After considering those factors, the trial court overruled the objection and determined that Bessett could testify about retrograde extrapolation.

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Bluebook (online)
353 P.3d 609, 271 Or. App. 785, 2015 Ore. App. LEXIS 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-trujillo-orctapp-2015.