State v. O'Key

Citation899 P.2d 663,321 Or. 285
Parties, 64 USLW 2115 STATE of Oregon, Respondent on Review, v. Albert R. O'KEY, Petitioner on Review. CC TM90-5122; CA A70279; SC S40926.
Decision Date07 July 1995
CourtSupreme Court of Oregon

[321 Or. 286-F] John Henry Hingson III, Oregon City, argued the cause on behalf of petitioner on review. On the petition were Stephen A. Lovejoy, Lincoln City, and Jenny Cooke, Portland.

Jonathan Fussner, Asst. Atty. Gen., Salem, argued the cause on behalf of respondent on review. With him on the response to the petition were Theodore R. Kulongoski, [321 Or. 286-G] Atty. Gen., and Virginia Linder, Sol. Gen., Salem.

David K. Allen, Salem, and Chris J. Shine, Portland, filed a brief on behalf of amicus curiae Oregon Crim. Defense Lawyers, Inc.

UNIS, Justice.

This case concerns the admissibility of Horizontal Gaze Nystagmus (HGN) test evidence in a prosecution for driving under the influence of intoxicants (DUII), ORS 813.010.


On July 8, 1990, at about 12:30 a.m., Oregon State Trooper Gregory saw defendant leaving a social event held at the Philomath rodeo grounds. Trooper Gregory noticed that defendant was having trouble walking. After he watched defendant drive away in a pickup truck, make wide turns, and fail to react promptly to a green traffic light, Trooper Gregory stopped defendant. Trooper Gregory smelled alcohol and saw a number of empty beer cans in the back of the pickup truck. Defendant had trouble removing his driver's license from his wallet and could not find his vehicle registration. Defendant admitted to having consumed about four to six beers between 3 p.m. and midnight.

Trooper Gregory asked defendant to perform a series of field sobriety tests. 1 The tests administered to defendant included the one-leg stand test, the walk-and-turn test, the finger count test, the Romberg balance test, the finger-to-nose test, and the HGN test. 2 Trooper Gregory administered the HGN test to defendant in accordance with OAR 257-25-020(1)(a) (March 1990), quoted infra, 321 Or. at 294-95, 899 P.2d at 673-74.

The HGN test, as discussed more fully below, involves the measurement of the angle of onset of nystagmus, or jerky movement, as the eye tracks a steadily moving object, such as a finger, pencil, or pen-size flashlight. Trooper Gregory testified that defendant's eyes displayed jerky pursuit, endpoint nystagmus, and nystagmus at 40 degrees in both eyes. [321 Or. 288] Trooper Gregory also testified that defendant had trouble performing several of the other field sobriety tests. Based on the results of the field sobriety tests administered, Trooper Gregory arrested defendant for DUII. After the arrest, defendant refused, when requested, to submit to a chemical test of his breath for the purpose of determining his blood alcohol content (BAC).

The state requested a pretrial omnibus hearing to determine the admissibility of HGN test evidence. At that hearing, the state contended that HGN test evidence is admissible to prove both that defendant was driving a vehicle while under the influence of intoxicants and that defendant's BAC was .08 percent or more. Defendant argued (1) that HGN test evidence must satisfy the standard regarding the admissibility of scientific evidence established by this court in State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), and (2) that such evidence is inadmissible because it does not satisfy that standard. After hearing and evaluating extensive scientific testimony and evidence concerning the HGN test, the trial court held (1) that HGN test evidence is scientific evidence that must meet the standard for admissibility of scientific evidence enunciated in Brown, (2) that HGN test evidence "may be of substantial probative value and may be helpful to the trier of fact in determining the issues of whether a defendant was under the influence of intoxicants and whether his (or her) blood alcohol level was at least .08%," but (3) that "the probative value of the [HGN test evidence] is outweighed by the danger of unfair prejudice because of the potential for error and subjectivity of [the] test." Accordingly, the trial court entered an order excluding HGN test evidence at defendant's trial.

Pursuant to ORS 138.060(3), 3 the state appealed. The Court of Appeals initially affirmed without opinion. State v. O'Key, 115 Or.App. 102, 835 P.2d 964 (1992). The Court of Appeals then granted the state's motion for reconsideration and, on reconsideration, reversed the order of the trial court, concluding that the HGN test meets the admissibility requirements for scientific evidence under Brown. State v. O'Key, 123 Or.App. 54, 858 P.2d 904 (1993). The Court of Appeals held that the HGN test evidence was admissible (1) to establish that defendant was under the influence of alcohol and (2) to "corroborate a chemical analysis of the blood or breath and assist the trier of fact in the evaluation of the accuracy of an intoxilyzer or blood analysis result." 123 Or.App. at 60, 858 P.2d 904.

We allowed review to determine whether HGN test evidence is admissible in a prosecution for DUII and, if so, for what purposes. We now hold that HGN test evidence is admissible in a prosecution for DUII to establish that a person was under the influence of intoxicating liquor, but is not admissible under ORS 813.010(1)(a) to establish a person's BAC, i.e., that a person was driving while having a BAC of .08 percent or more. Admissibility is subject to a foundational showing that the officer who administered the test was properly qualified, that the test was administered properly, and that the test results were recorded accurately. Accordingly, we affirm in part and reverse in part the decision of the Court of Appeals. We reverse the order of the district court.




The admissibility of HGN test evidence is an issue of first impression in this court. We first address the question whether HGN test evidence must satisfy the standard for admission of "scientific" evidence, which standard we discuss below. The state contends that "Each field sobriety test, as described below, is specifically found to meet the requirements of ORS 801.272:

HGN test evidence need not comply with that standard, because the legislature, by ORS 801.272 (see supra, note 1), has delegated to the Oregon State Police (OSP) the authority to approve field sobriety tests and that, pursuant to that authority, the OSP has approved the HGN test by adoption of OAR 257-25-020(1), which provides in part:

"(a) Horizontal Gaze Nystagmus * * *."

ORS 801.272 delegates to the OSP the authority to choose field sobriety tests after consultation with the Board on Public Safety Standards and Training. The state contends that, because this delegation mentions "trier of fact," it manifests the legislature's approval of the admissibility of the results of whatever field sobriety tests may be chosen by the OSP. We disagree.

ORS 801.272 is a definitional statute that describes what is considered to be a "field sobriety test"; it does not purport to provide for the admission of field sobriety tests into evidence in a trial in a court of law or other adjudicative proceeding. Although the legislature has delegated to the OSP, after consultation with the Board on Public Safety Standards and Training, the determination of what constitutes a "field sobriety test," the legislature did not delegate to the OSP the authority to decide what evidence is admissible in a prosecution for DUII. It follows that approval of the HGN test by the OSP does not mean that HGN test evidence is admissible.


We next turn to the question whether HGN test evidence is "scientific" evidence. If it is, then HGN test evidence must comply with the standard for admission of "scientific" evidence; otherwise, it need not. Neither the Oregon Evidence Code nor the unofficial commentary to that code defines "scientific" evidence. Rather, as this court recognized in Brown, 297 Or. at 408, 687 P.2d 751, the Oregon legislature, in adopting the Oregon Evidence Code, left for judicial decision the standard to be used in determining the admissibility of "scientific" evidence. Without attempting precisely to define "scientific" evidence, this court in Brown stated that "[t]he term 'scientific' * * * refers to evidence that draws its convincing force from some principle of science, mathematics and the like." Id. at 407, 687 P.2d 751. In State v. Milbradt, 305 Or. 621, 631, 756 P.2d 620 (1988), this court, without attempting to further define "scientific" evidence, held that psychological syndrome evidence is a form of "scientific" evidence that will be admitted into evidence only if the foundational requirements for admission of scientific evidence are established. 4

This court's definition of "scientific" evidence in Brown recognizes that it is difficult to set a more definitive boundary between "scientific" evidence and "technical or other specialized knowledge," which are the other types of evidence requiring expert proof. 5 As Professors Mueller and Kirkpatrick state:

"Most expert testimony rests at least partly on science. In many areas the scientific underpinning is well established and the criteria set out in [Rules] 702 and 703 work well. The requirements are essentially three: The witness must qualify as an expert, his testimony must be helpful ( [Rule] 702), and he must have an adequate Evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power. 6 The function of the court is to ensure that the persuasive appeal is legitimate. The value of proffered expert scientific testimony critically depends on the scientific validity of the general propositions utilized by the expert. See John William Strong, Language and Logic in Expert Testimony:...

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