State v. Clark, 77-00902

• Decision Date: 22 August 1978
• Docket Number: No. 77-00902,77-00902
• Parties: STATE of Oregon, Respondent, v. Chester CLARK, Appellant. ; CA 9606.
• Court: Oregon Court of Appeals

Page 1142

583 P.2d 1142

35 Or.App. 851

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

No. 77-00902; CA 9606.

Court of Appeals of Oregon.

Argued and Submitted March 20, 1978.

Decided Aug. 22, 1978.

James M. Gillis, Newport, argued the cause for appellant. With him on the brief was Litchfield, MacPherson & Carstens, Newport.

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

Before SCHWAB, C. J., and JOHNSON, GILLETTE and ROBERTS, JJ.

GILLETTE, Judge.

Defendant appeals from his conviction, after a jury trial of driving while under the influence of intoxicants. We affirm.

Defendant makes two assignments of error, both of which relate to the court's instructions to the jury.

First, defendant complains that the instructions twice mentioned that portion of ORS 487.540 ¹ which forbids driving with a blood alcohol level of .10 percent or more, and thus unduly highlighted that portion of the law.

We find no error. In fact, the court's instructions referred twice to all the elements of ORS 487.540 once to describe the statute under which the defendant was charged, and the second time to describe the state's burden of proving each material element of the charge. ² Defendant acknowledges that both instructions correctly stated the law. This was an appropriate and balanced approach in defining for the jury the issues and the burden which the law places upon the state.

Defendant claims, however, that " * * * giving both instructions * * * resulted in the impression that the breath test was uncontrovertable (sic) evidence." We are unable to perceive anything in the instructions As given which justifies defendant's claim, and so reject it.

Defendant further notes, however, that the entire set of instructions was given again in response to a question received from the jury after deliberations had begun:

"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 .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." (Emphasis added.)

The trial court's response to this request was correct: it replayed the tape recording of its earlier instructions. As the emphasized portion of the jury inquiry shows, this was at bottom all the jury was requesting.

Defendant disagrees, claiming that the first two sentences of the jury inquiry required a specific response which the instructions could not provide. This brings us to the general theory involved in defendant's second assignment of error, Viz., that ORS 487.540(1)(a) embodies an impermissible conclusive presumption.

There are really two parts to this second contention of defendant:

(1) ORS 487.540(1)(a) constitutes a conclusive presumption, which is impermissible in the criminal law; and

(2) ORS 487.540(1)(a) and ORS 487.545 ³ must be read to permit consideration by the jury of other evidence which might tend to disprove the breathalyzer result.

Defendant's first point was decided adversely to him in State v. Torrey, 32 Or.App. 439, 574 P.2d 1138, Rev. den. (1978). Driving with a blood alcohol level of .10 percent or greater is an alternative statutory definition of the offense of driving under the influence of intoxicants, not a conclusive presumption.

Defendant's second point raises a question about a portion of State v. Torrey which, upon reconsideration, we are now convinced was unduly expansive. In Torrey, we held that, where a defendant is charged with driving under the influence of intoxicants under ORS 487.540(1)(A ), (driving with a blood alcohol level of .10 or above) rather than (b) or (c), a trial judge could properly refuse to permit a defendant to offer evidence tending to show that defendant at the time exhibited no physical symptoms suggesting he was under the influence. Stated this way, the rule of Torrey is too broad. The correct analysis is as follows:

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. Defendant can do this in one of two ways. First, he can show, by the testimony of those that performed it, that the chemical analysis used in the case was improperly conducted. Second, he can offer 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. See State v. Swarengin, 12 Or.App. 290, 506 P.2d 729 (1973) (decided under analogous prior statute).

However, as with any such testimony, a proper foundation must be laid for it. The question then becomes: What is a proper foundation which will permit a jury to consider circumstantial evidence tending to contradict the state's evidence of a particular blood alcohol reading? This is a question we did not specifically consider in State v. Swarengin, supra.

We think such testimony, where it is specifically offered for the purpose of challenging, by inference, the accuracy of a test which showed a blood alcohol level of .10 percent or above, is 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. Such evidence will usually be in the form of expert testimony. Without such an evidentiary predicate, a jury of laymen would have insufficient data to assign any real probative value to observations of the physical behavior of the defendant. ⁴

Applying this rule to the present case, and absent any expert testimony of the kind described, defendant would not have been entitled to have the jury initially instructed that they could 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. It follows that the trial judge correctly declined to answer the two intermediate questions posed to him by the jury, since he would then have been giving an instruction unsupported by evidence. His decision to play back the instruction he had previously given was correct.

Affirmed.

JOHNSON, Judge, dissenting.

I respectfully submit that the majority's reasoning is fallacious and renders ORS 487.540(1)(a), driving with a blood-alcohol content of .10 percent or more as measured by chemical analysis, a wholly superfluous statutory provision.

A juror made the following request of the trial court:

"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 .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." ¹ (Emphasis supplied)

The trial court responded by playing back the audio recording of its previous instructions. The majority emphasizes the last sentence of the juror's question and concludes that all the juror wanted was a repetition of the instructions. If the majority is correct in its analysis, then the remainder of the majority's opinion is dictum. Unfortunately, the analysis is incorrect. The touchstone of the juror's question is in the preceding sentence and the playback was not responsive to that question. A likely impression left on the jury is that the breathalyzer result introduced by the state, which was .13 percent blood-alcohol, was conclusive evidence of guilt. The proper answer to the juror's question would have been that a finding of .10 percent or more blood-alcohol as shown by chemical analysis constitutes the offense of driving while under the influence of intoxicants (DUII), but that the jury must find that the chemical analysis, I. e., the breathalyzer, did in fact accurately measure defendant's blood-alcohol content to be .10 percent or more.

The question remains, was the error prejudicial? I conclude that it was not because defendant did not offer any evidence that attacked the credibility of the breathalyzer result. It is at this point that my path of reasoning and the majority's join, only shortly to detour in opposite directions. The only evidence introduced by defendant was testimony by eye witnesses that defendant was not visibly intoxicated. The majority and I agree that the evidence as presented was not competent to disprove the breathalyzer result. The majority reasons that such evidence is admissible under ORS 487.540(1)(a) and competent to prove or disprove blood-alcohol content provided that a proper foundation is made in the form of "scientific evidence of the relationship between physical size, blood-alcohol content and reasonably expected behavior." Defendant failed to lay such foundation and consequently the majority concludes that defendant's evidence was not competent. The foundation requirement imposed by the majority is an inappropriate judicial invention. My opinion is that defendant's evidence of observable symptoms is not competent because the legislature has precluded consideration of such evidence under ORS 487.540(1) (a).

The majority states that "(t)he gravamen of ORS 487.540(1)(a) is driving with a certain blood alcohol level." To the contrary, the gravamen of the offense is driving with a designated blood-alcohol level "as shown by chemical analysis of his breath, blood, urine or saliva * * * ." ORS 487.540(1)(a). It is the quoted language that differentiates the elements...