State v. Brown, A160980

Citation430 P.3d 160,294 Or.App. 61
Decision Date12 September 2018
Docket NumberA160980
Parties STATE of Oregon, Plaintiff-Respondent, v. Wiley Joseph BROWN, Defendant-Appellant.
CourtCourt 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 "test is basically an eye test. It's—we look for involuntary jerking of the eyes. Whenever a person's under the influence of alcohol, it causes an involuntary jerking of the eyes." 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


"A. Yes. I've talked to people, but not like—I haven't evaluated them or anything.

"* * * * *

"Q. Now, you mentioned that you had had some interaction with people who have traumatic brain injuries


"A. Uh-huh.

"Q. In your experience, isn't it typical that they can get confused more easily than others?

"A. My experience of folks with traumatic brain injury, they're pretty serious, so they're already confused as it is a lot of time. Not really able to speak very well. Most of them can't walk, that kind of thing.

"Q. But it would probably depend on the degree of injury, just on—

"A. I would assume so, yes.

"Q. So you would agree, then, that they might need to concentrate a little bit more on their actions?

"A. Possible.

"Q. Would it surprise you that someone with a traumatic brain injury and a prosthetic leg may have some difficulty walking through those winter conditions?

"A. It wouldn't surprise me, no.

"* * * * *

"Q. The questions you ask individuals prior to initiating the [HGN] test, those are meant to gauge, well, potential injuries they might have that would interfere with the test?

"A. Yes, sir.

"Q. And you testified that you were trained pursuant to the National Highway Traffic Safety [Administration (NHTSA) ] standards, correct?

"A. Yes, sir.

"Q. You ask those questions because head trauma, for instance, that can potentially give a false-positive for an HGN?

"A. (No audible response.)

"Q. Someone with any sort of brain injury, that can also lead them to having nystagmus, correct?

"A. I would assume that depends on the brain injury

. But yes, there is training that—

"Q. Isn't it correct that your—

"* * * * *

"Q. —training manual for [NHTSA] teaches you that a brain injury can cause someone to have nystagmus?

"A. Yes.

"Q. And there's more than just one form of nystagmus, correct?

"A. Yes.

"Q. There's physiological nystagmus, for instance?

"A. Yes.

"Q. Optokinetic nystagmus?

"A. I'm not familiar with that term, but yes, I would assume there is.
"Q. Are you familiar with fatigue nystagmus?
"A. Uh-huh.
"Q. So simply put, there's a lot of different forms of nystagmus?
"A. There can be. Yes, sir.
"Q. So after you learned that Mr. Brown had that traumatic brain injury

, you weren't surprised that he had nystagmus ?

"A. Not because of the brain injury.

"Q. Officer Poole, are you a neurologist?

"A. No.

"Q. Are you a registered nurse?

"A. No.

"Q. Optometrist?

"A. No.

"Q. Do you know the names of the muscles that control eye movement?

"A. No.
"Q. How many muscles control eye movement? Do you know?
"A. A lot.
"Q. How far does the eye need to jerk to display nystagmus?
"A. How far?
"Q. How far does it need to jerk?
"A. Not very far.
"Q. How many times does it need to jerk?
"A. It's consistent. That's why it's called distinct and sustained. If it just bounces and then stops, that's not nystagmus

. Distinct and sustained is where you see a noticeable jerking and it continues."

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?

"A. The first thing that I would look for is—is resting nystagmus. So if I looked at him and when I'm looking at his eyes, if his eyes were going like this, that's indicative of some sort of brain injury or other neurological disorder. And then if that had been present, I wouldn't have continued to test, because I'd be able to tell that there's no way I'd be able to know if he had nystagmus or not.

"Q. And—sorry. Just going to pause right there. And did you see that?

"A. No.

"Q. Okay. What else?

"A. And then unequal pupil size is consistent with, like—so if one [eye] has a larger pupil than the other, that's indicative [of] concussion, brain injury, those kind of things.

"Q. And did you see that in this case?

"A. No. No. Both *** pupil sizes were equal.
"Q. What other—for somebody who has nystagmus

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?

"A. Now, alcoholnystagmus, you get the six clues. With the brain type of nystagmus, you would—you wouldn't get that many. You'd get one type or the other. It wouldn't be consistent all the way throughout the test as indicated by alcohol."

(Emphasis added.)

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.

Drugs that cause dilated or constricted pupils. Those kinds of things. So ...
"Q. And the information about different indicators of nystagmus that you were talking about today, that came from that training?
"A. From the standard NHTSA training, correct."

Based on that foundation, the trial court overruled de...

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