State v. Whitmore

307 P.3d 552, 257 Or. App. 664, 2013 WL 3818147, 2013 Ore. App. LEXIS 890
CourtCourt of Appeals of Oregon
DecidedJuly 24, 2013
Docket211008576; A146430
StatusPublished
Cited by24 cases

This text of 307 P.3d 552 (State v. Whitmore) 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. Whitmore, 307 P.3d 552, 257 Or. App. 664, 2013 WL 3818147, 2013 Ore. App. LEXIS 890 (Or. Ct. App. 2013).

Opinion

NAKAMOTO, J.

Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010(1).1 Defendant contends that the trial court erred when it admitted expert testimony by a forensic scientist regarding the rates at which the blood absorbs and eliminates alcohol without the foundational showing of scientific validity required by State v. Brown, 297 Or 404, 687 P2d 751 (1984), and State v. O’Key, 321 Or 285, 899 P2d 663 (1995). The state argues that no such foundation was required in this case and that, regardless, any error was harmless. We review for errors of law. State v. Bevan, 235 Or App 533, 535, 233 P3d 819 (2010). We conclude that the testimony should not have been admitted and that the error was not harmless. We therefore reverse and remand.

The relevant facts are not in dispute. Defendant and his girlfriend, Beechinor, attended a small gathering at a friend’s house on the evening of March 17, 2010, arriving at approximately 9:00 or 9:30 p.m. Defendant and Beechinor testified that defendant drank three beers over the course of the evening, before leaving with Beechinor at about 2:30 or 2:45 a.m. on the morning of March 18. They drove a friend home, after which they stopped at a restaurant to buy some food, and then began to drive to defendant’s house. Lane County Deputy Sheriff Schenfeld stopped defendant for speeding at 3:20 a.m. Schenfeld smelled a moderate odor of alcohol when he approached the driver’s side of defendant’s vehicle. Schenfeld also noted that defendant’s eyes were bloodshot and watery and that his speech was a little bit thick and slightly slurred.2 Schenfeld administered four field sobriety tests. Defendant failed three. Schenfeld arrested defendant for DUII and transported him to the Lane County [666]*666jail. Defendant submitted to a breath test that indicated that his blood alcohol content (BAC) at 4:15 a.m. was 0.08 percent. Defendant was charged by a one-count information with misdemeanor DUII based on an allegation that he “did unlawfully drive a motor vehicle on a public highway * * * while under the influence of intoxicants, to-wit: intoxicating liquor [.]”

At trial, the state presented the expert testimony of Bray, a forensic scientist from the Oregon State Police Forensic Division. Bray testified about studies concerning the rates at which the blood absorbs and eliminates alcohol, telling the jury that an individual’s BAC generally peaks within 30 to 60 minutes after consuming the final drink. Bray also offered testimony regarding the use of the “Widmark formula” to calculate the number of alcoholic beverages consumed by an individual based on their BAC, a process known as “retrograde extrapolation.” Based on that information, Bray testified that a male weighing 185 pounds who drank between 9:00 p.m. and 1:00 a.m., would have had to consume between 7 and 10.5 drinks to have a BAC of 0.08 percent at 4:00 a.m.

We begin by determining whether defendant preserved the claimed error concerning the admission of Bray’s expert testimony; the state contends that he did not do so. Ordinarily, this court will not consider an issue on appeal unless it was first presented to the trial court. Kaptur and Kaptur, 256 Or App 591, 594, 302 P3d 819 (2013); ORAP 5.45(1). The determination whether a particular issue was preserved for appeal is a practical one and depends on whether the policies behind the preservation requirement are met in an individual case. Kaptur, 256 Or App at 594 (citing Charles v. Palomo, 347 Or 695, 700, 227 P3d 737 (2010)). The purpose of the requirement is “to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument.” Taylor v. Ramsay-Gerding Construction Co., 233 Or App 272, 283, 226 P3d 45, adh’d to as modified on recons, 235 Or App 524, 234 P3d 129 (2010) (internal quotation marks omitted). We will thus review an issue advanced by a party on appeal as long as that party “raised the issue below with enough particularity to assure that the trial court was [667]*667able to identify its alleged error so as to consider and correct the error immediately, if correction is warranted.” Kaptur, 256 Or App at 594 (internal quotation marks omitted). We conclude that defendant did so here.

Defendant filed a motion in limine to exclude evidence of retrograde extrapolation without the proper foundation for scientific evidence. In that motion, defendant argued that the anticipated expert testimony “relating the results of the breath test to the time of driving” was based on an “analytical approach * * * known as retrograde extrapolation and is not considered to be reliable or generally accepted by a consensus of scientists competent in forensic alcohol analysis.” In support of that argument, defendant cited to several journal articles and multiple appellate court opinions from other states that purportedly considered and rejected retrograde extrapolation as unreliable. Defendant expressly requested that the trial court “require the Prosecution to provide a BROWN/O’KEY ** * foundation prior to the admissibility of any evidence relating to retrograde extrapolation.” At pretrial proceedings, defendant reiterated the substance of that motion, stating:

“[The prosecutor] intends to offer opinion evidence by a person regarding dissipation rates, comparisons with body weight, you know, how much a person would have to drink, absorbed dissipation, Widmark, all those things. Again, that’s opinion evidence. *** And to the gist of the memorandum in support of the motion, it’s not peer reviewed. Doesn’t meet the scientific foundation under O’Key and Brown”

The trial court responded:

“*** I’m going to allow — assuming that this officer comes in and lays out a foundation that — that seems to me to be sufficient to qualify him — not her. Him?
“ [THE PROSECUTOR]: Her.
“THE COURT: Her. Qualify her as an expert on this issue. I think it goes to the jury to determine the value or weight to determine that testimony in light of the overall circumstances. I’m going to deny the motion to exclude the criminologist’s opinion, assuming that I conclude after hearing this background that the — that the qualifications seem sufficient.”

[668]*668We conclude, based on that record, that defendant presented to the trial court, clearly and with sufficient particularity to satisfy our preservation requirements, his position regarding the scientific validity (or lack thereof) of the expert’s anticipated testimony, as well as his request that the trial court require the state to lay the proper foundation for expert testimony based on retrograde extrapolation.

The state argues, however, that defendant nevertheless failed to preserve his claim of error because defendant did not object, at trial, to Bray’s testimony. That argument is without merit. Parties are not required to repeat their objections after the trial court has ruled against them. Kaptur, 256 Or App at 594 (citing Charles, 347 Or at 701-02); see also State v. Pitt, 352 Or 566, 574, 293 P3d 1002 (2012) (a defendant’s motion in limine

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Bluebook (online)
307 P.3d 552, 257 Or. App. 664, 2013 WL 3818147, 2013 Ore. App. LEXIS 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whitmore-orctapp-2013.