State v. Brown, A160980
|430 P.3d 160,294 Or.App. 61
|12 September 2018
|STATE of Oregon, Plaintiff-Respondent, v. Wiley Joseph BROWN, Defendant-Appellant.
|Court of Appeals of Oregon
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erin J. Snyder Severe, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.
In this criminal case, defendant appeals a judgment convicting him of one count of driving under the influence of intoxicants (DUII), ORS 813.010. He argues that the trial court erred in concluding that a police officer was qualified to offer expert testimony that a person who had nystagmus1 as a result of a traumatic brain injury
would not exhibit all six "clues" on the horizontal gaze nystagmus (HGN) test. We agree with defendant that the officer lacked the expertise necessary to testify as he did regarding the relationship between traumatic brain injury and HGN, and we conclude that the trial court's error was not harmless. Accordingly, we reverse and remand.
We summarize all the evidence relevant to the trial court's admission of the officer's testimony under OEC 702, and we review the court's ruling for legal error. State v. Hazlett , 269 Or. App. 483, 494, 345 P.3d 482 (2015). City of Bend Police Officer Poole was the only witness at trial. Poole testified that he stopped defendant, who was driving a Jeep, after observing defendant improperly take the right of way at a stop sign and intentionally skid during a turn on a slushy, icy road. During the stop, Poole observed that defendant's head was lolling against the door of the Jeep; his speech was slurred; his movements were slow; his eyelids were droopy; and his eyes were bloodshot and "glossed over." In response to Poole's request for defendant's driver's license, registration, and insurance information, defendant told him an unrelated story, became confused, and asked what Poole wanted. Defendant agreed to perform field sobriety tests. After he got out of his vehicle, he stumbled, and Poole smelled a strong odor of alcohol on his breath. Before beginning the tests, Poole asked defendant a series of "pretest questions" and, during that exchange, defendant informed Poole that he had suffered a traumatic brain injury
but did not have speech problems as a result. Later in the series of questions, defendant explained that he had a past head injury. Later in the stop, Poole learned that, as a result of being hit by a car, defendant had a prosthetic leg.
As described in more detail below, Poole conducted the HGN test and defendant scored six out of six possible points, which, Poole testified, indicated that defendant was impaired. After defendant fell on a snow berm, Poole decided to arrest him rather than attempt to conduct more field sobriety tests in the icy conditions. When he was arrested, defendant became angry and aggressive. Throughout the rest of the encounter, defendant had erratic mood swings. In addition to swearing at Poole, defendant stated that he had been drinking wine. Although Poole testified that defendant had consented to take a breath test, no breath test results were introduced.
On direct examination, Poole testified that the HGN Poole explained that, before beginning the test, he makes sure "that their pupils are consistent in size; that there's no resting nystagmus," that is, no jerking of the eyes while they are resting; "and that they're able to look and focus on the tip of my pen."
Then Poole explained that, during the test, he looks for a lack of smooth pursuit, distinct and sustained nystagmus
at maximum deviation, and onset of nystagmus before 45 degrees. To score the test, Poole gives one point for each of those "clues" exhibited in each eye, for a total of six possible points. When he conducted the test on defendant, defendant scored six points, which, Poole testified, indicated impairment.
On cross-examination, defense counsel questioned Poole about his experience with traumatic brain injuries
and his understanding of their relationship to nystagmus :
"Q. And have you had experience with people who have traumatic brain injuries
, you weren't surprised that he had nystagmus ?
On redirect examination, the prosecutor elicited testimony from Poole to suggest that the result of the HGN test was accurate despite defendant's traumatic brain injury
"Q. What indications would you look for with someone with traumatic brain injury
to make—to prevent, you know, the—a false clue?
resulting from some kind of trauma, are there any other things that you would notice about that nystagmus that would differentiate between that nystagmus and the nystagmus caused by alcohol?
At that point, defense counsel objected: "I don't believe he's qualified as a medical expert for this." In response, the prosecutor elicited more detailed information about Poole's training. Poole explained as follows:
"The [NHTSA], their standard test teaches you about nystagmus
, why it's caused, how it's caused and to tell whether—like the false positives and things that you're talking about, the brain injuries that go behind it, all those. It's a—it's about a 24-, 36-hour course in how to detect not just nystagmus, but the other indicators of alcohol. And then the advanced recognition course, which goes further into drugs that impair driving, drugs that cause nystagmus, lack of convergence with your eyes.
Based on that foundation, the trial court overruled de...
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