State v. Clark

• Decision Date: 03 April 1979
• Citation: 593 P.2d 123,286 Or. 33
• Parties: STATE of Oregon, Respondent, v. Chester CLARK, Petitioner. TC 77-00902; CA 9606; SC 25853.
• Court: Oregon Supreme Court

Page 123

593 P.2d 123

286 Or. 33

STATE of Oregon, Respondent, v. Chester CLARK, Petitioner.

TC 77-00902; CA 9606; SC 25853.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 6, 1979.

Decided April 3, 1979.

J. Michael Alexander, of Brown, Burt & Swanson, P. C., Salem, argued the cause and filed the brief for petitioner.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause and filed the brief for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

TONGUE, Justice.

Defendant was convicted of driving while under the influence of intoxicants (ORS 487.540) after a jury trial in which the state offered in evidence the results of a "Breathalyzer" test which showed that defendant's blood had an alcohol content of .13 percent. Both parties also offered testimony relating to the defendant's observable symptoms of alcoholic impairment. ¹

The jury, during the course of its deliberations, sent to the trial judge the following note "Even though the law states that .10 means a person is 'under the influence', does this require a juror to go ahead and pronounce the Defendant guilty? Can the breathalyzer say a .10 or over and still I could come back with a verdict of not guilty? I just would like to have the law explained to me again so that it is perfectly clear to me."

In response, the trial judge had the "tape" of its previous instruction to the jury "played back to it." In appealing to the Court of Appeals, defendant assigned as error the giving of that instruction upon the ground that it was "misleading" to the jury and upon the ground that the jury was instructed "in the terms of ORS 487.540(1)(a) in such a manner as to create a conclusive presumption, which is invalid under the Due Process Clause of the Fourteenth Amendment." ²

The Court of Appeals affirmed defendant's conviction (35 Or.App. 851, 583 P.2d 1142 (1978)). The majority found no error in the instructions complained of, holding that they "correctly stated the law," were not misleading and did not "embod(y) an impermissible conclusive presumption," so as to forbid consideration by the jury of evidence which might tend to disprove the "Breathalyzer" result, such as (1) "the testimony of those who performed (the Breathalyzer test) that the chemical analysis used in the case was improperly conducted," and (2) "circumstantial evidence from other witnesses (including the defendant) to show that there is such a disparity between what the chemical test shows and other facts that one should Infer that the test was in some way defective." (35 Or.App. at 853-56, 583 P.2d at 1145)

The majority went on to hold, however, that before such circumstantial evidence could be offered, "a proper foundation must be laid for it" and that this would "usually" require expert testimony. The majority concluded that evidence challenging the accuracy of a test showing a blood alcohol level of .10 percent or above would be

" * * * relevant only if proper evidence of the relationship between physical size, blood alcohol content and reasonably expected behavior has been introduced so that the jury has some guidelines to follow in assessing the evidence."

and that

" * * * absent any expert testimony of the kind described, defendant would not have been entitled to have the jury initially instructed that they should consider any physical observations which had been made of defendant in determining whether or not they were persuaded as to the correctness of the blood alcohol test result." (35 Or.App. at 856-57, 583 P.2d at 1145)

Defendant's petition for review contends that the Court of Appeals "unnecessarily expanded the scope of its opinion" and that it "erred in holding that expert opinion testimony is a necessary foundation for introducing circumstantial evidence to rebut a breathalyzer reading." ³ We granted review.

In undertaking our consideration of these contentions it should be noted, at the outset, that we agree with the following statement by the majority:

"The gravamen of ORS 487.540(1)(a) is driving with a certain blood alcohol level. The legislature has seen fit to forbid this act, without more. The correctness of the evidence tending to establish the blood alcohol level is thus crucial. Equally crucial is defendant's right to attack the evidence of blood alcohol level." (35 Or.App. at 856, 583 P.2d at 1145)

We find nothing in ORS 487.540 or in its legislative history, however, to support the apparent assumption by the Court of Appeals that a "chemical analysis" of defendant's breath was intended by the legislature to constitute evidence of such a nature as to require expert testimony as a necessary "foundation" for an "attack" by the defendant on such evidence by the offer of non-expert testimony relating to observation of defendant's conduct and demeanor. Neither do we find any rule of law that requires a "foundation" by expert testimony as a prerequisite to the admission of testimony of "observable symptoms" in such a case, and the Court of Appeals cites no authority for such a proposition.

Indeed, as stated in 7 Wigmore on Evidence 579, § 2090 (Chadbourn rev. 1978):

"There is no general policy or rule that Requires expert testimony to form a part of the evidence on subjects open to expert testimony. No rule of preference exists for expert witnesses as such * * *." ⁴

It is true, of course, that all offered evidence must be shown to have some probative value in order to be relevant. We recognize that some conduct by a defendant in such a case may have no relevance to either the question whether he was "under the influence of intoxicating liquor" (for the purpose of ORS 487.540(1)(b)) or whether he had a blood alcohol content of .10 percent or more (for the purposes of ORS 487.540(1)(a)). In addition, it may be true that some persons may exhibit no observable symptoms of intoxication, and yet may have a blood alcohol content of .10 percent. We must also recognize that in its adoption of ORS 487.540(1)(a), making it an offense to drive an automobile with a blood alcohol content of .10 or more, the legislature apparently assumed, based upon scientific studies and accepted medical knowledge, that the physical and mental condition of a driver with such a level of blood alcohol is impaired to such a degree as to make it unsafe for him to drive a motor vehicle, regardless of observable physical symptoms. ⁵

Nevertheless, it does not follow that No evidence of any observable physical symptoms has any relevance upon the question whether a "chemical analysis" of the breath of a driver showing a blood alcohol content of .10 percent or more is accurate.

Indeed, as noted by the Court of Appeals, the defendant in such a case is entitled to "offer circumstantial evidence * * * to show that there is such a disparity between what the chemical test shows and other facts that one should Infer that the test was in some way defective." (35 Or.App. at 856, 583 P.2d at 1145)

This court can properly take judicial notice of the fact that observable symptoms or "signs" of alcohol intoxication include the following:

(1) Odor of the breath

(2) Flushed appearance

(3) Lack of muscular coordination

(4) Speech difficulties

(5) Disorderly or unusual conduct

(6) Mental disturbance

(7) Visual disorders

(8) Sleepiness

(9) Muscular tremors

(10) Dizziness

(11) Nausea ⁶

In our opinion, there is a sufficient "foundation", as a matter of either common knowledge or of scientific and medical knowledge, to make " relevant" testimony of the absence of such observable symptoms as circumstantial evidence not only upon the question whether the driver of a motor vehicle is "under the influence of intoxicating liquor" (for the purposes of ORS 487.540(1)(b)), but also upon the question whether (for the purposes of ORS 487.540(1)(a)) a "chemical analysis" of the breath of a driver showing a blood alcohol content of .10 percent or more was an accurate "chemical analysis", without requiring the defendant to "lay a foundation" by expert testimony, as required by the Court of Appeals.

It is true that the "chemical analysis" of the breath of a defendant showing that "he has a .10 percent or more weight of alcohol in his blood" for the purposes of ORS 487.540(1)(a) must be performed by a qualified expert. (See ORS 487.815(1)) The results of that "chemical analysis", however, whether offered in evidence by the testimony of that expert or by a written record of that "analysis" as made by him, is "expert testimony", and is subject to impeachment on the same basis as any other expert testimony.

It is well established in Oregon that the probative weight to be accorded to the testimony of an expert witness is for the jury as the trier of the facts and that it is not bound by the testimony of an expert witness even though it be uncontradicted. See, e. g., City of Portland v. Ruggero, 231 Or. 624, 630, 373 P.2d 970 (1969). Indeed, this court has said that "the evidence of experts in all cases should be received and weighed with caution." Wendl v. Fuerst, 68 Or. 283, 295, 136 P. 1, 5 (1913). See also Oxley et al. v. Linnton Plywood Ass'n., 205 Or. 78, 103, 284 P.2d 766 (1955).

The principal evidence of the "chemical analysis" of the alcohol content of the blood of the defendant in this case, as in many such cases, consisted of the testimony of the officer who performed the Breathalyzer test and the written report by that officer entitled "Breathalyzer Operator's Check List". ⁷ That report set forth, as "checked", some fourteen steps of the "test procedure" and concluded with a "scale reading" of ".13 blood alcohol by weight", as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

According to a study of the subject as prepared and published in 1970 by the American Medical Association entitled "Alcohol and the Impaired Driver," at p. 102:

"It may be concluded that on comparison of a variety of techniques for both blood...