State v. Rumler

• Decision Date: 13 April 2005
• Citation: 110 P.3d 115,199 Or. App. 32
• Parties: STATE of Oregon, Appellant, v. Victor Charles RUMLER, Respondent.
• Court: Oregon Court of Appeals

110 P.3d 115

199 Or. App. 32

STATE of Oregon, Appellant, v. Victor Charles RUMLER, Respondent.

D0205484T; A123556.

Court of Appeals of Oregon.

Argued and Submitted March 3, 2005.

Decided April 13, 2005.

Susan Howe, Assistant Attorney General, argued the cause for appellant. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jill Smith, Assistant Attorney General.

Thomas Ifversen, Portland, argued the cause for respondent. With him on the brief was Kahn & Ifversen, Attorneys, L.L.P.

Before HASELTON, Presiding Judge, and LINDER¹ and ORTEGA, Judges.

HASELTON, P.J.

The state appeals from an order suppressing, inter alia, the results of an Intoxilyzer test in a prosecution for driving under the influence of intoxicants (DUII). ORS 813.010.² The trial court concluded that the state had failed to establish a sufficient foundation for admissibility under ORS 813.160(1)(b) because, at the time of the suppression hearing, the officer who had administered the Intoxilyzer test had no present recollection of administering that test. The trial court so concluded, notwithstanding that the state had proffered the contents of an Intoxilyzer checklist, which the officer testified he had accurately completed at the time that he had administered the test. The state now contends that the trial court's ruling was erroneous primarily because, regardless of the officer's lack of specific recollection at the time of the suppression hearing, (1) under OEC 803(5), the checklist that the officer completed contemporaneously was sufficient substantive evidence of compliance with the prescribed Intoxilyzer protocol; and (2) in all events, the officer's testimony that he invariably adhered to the prescribed procedures was sufficient evidence of "habit" under OEC 406. We conclude that the state failed to preserve either of those contentions before the trial court, see State v. Wyatt, 331 Or. 335, 15 P.3d 22 (2000), and we reject the state's other, related arguments without discussion. Accordingly, we affirm.

The material facts are undisputed. On October 3, 2002, Washington County Sheriff's Deputy Michael Rockwell stopped defendant on suspicion of DUII. After arresting defendant, Rockwell administered an Intoxilyzer 5000 test to defendant, completing a checklist as he did so. The Intoxilyzer test result indicated a .11 percent blood alcohol level. Fourteen months later, in December 2003, the trial court held a pretrial hearing on defendant's motion to suppress, among other evidence, the Intoxilyzer test results. Rockwell testified that he had administered the Intoxilyzer test and that he had simultaneously completed the checklist. With respect to the particular process he had followed, Rockwell testified that (1) he had sat facing defendant for the entire 15-minute preadministration observation period; (2) before beginning the observation period, he had checked the inside of defendant's mouth; (3) he had not seen defendant ingest anything, or vomit or regurgitate, during the observation period; and (4) at the end of the observation period, defendant had confirmed that he had not ingested anything or vomited or regurgitated. The state then offered, and the court admitted without objection, the checklist, which stated, in part:

OPERATIONAL CHECKLIST [BAD TEXT] 1 Pre-Test Requirement: The operator is certain that the Subject has not taken anything by mouth (drinking, smoking, eating, taking medication, etc.), vomited, or regurgitated liquid from stomach into mouth. for at least fifteen minutes before taking the test. Observed by Rockwell START TIME: 0144 STOP TIME: 0202 [BAD TEXT] 2. ASSURE THAT THE "POWER" SWITCH IS ON AND THE INSTRUMENT IS OUT OF THE "NOT READY" STAGE. [BAD TEXT] 3. PUSH "START TEST" BUTTON TO lNtT[ATF TESTING SEQUENCE [BAD TEXT] 4. INSERT TEST RECORD CARD [BAD TEXT] 5. AFTER INSTRUCTING THE SUBJECT ON HOW TO GIVE A PROPER BREATH SAMPLE, AND HAVING MET THE 15 MINUTE PRE-TEST REQUIREMENT TAKE BREATH SAMPLE WHEN "PLEASE BLOW" APPEARS ON DISPLAY. [BAD TEXT] 6. REMOVE TEST RECORD CARD WITH PRINTOUT OF TEST RESULTS.

The state also offered, and the court admitted without objection, the implied consent form that defendant had signed.

On cross-examination, defense counsel asked whether Rockwell's testimony was based on his present recollection:

"Q Are you testifying, though, that you have specific memory of how this was conducted[,] or are you relying on some notes or other information that you took there?

"A No, neither. It's how I do it every time.

"Q So then would it be fair to say that you have no specific memory of the observation period with Mr. Rumler back in October of last year?

"A No, I don't."

The prosecutor, on redirect, elicited testimony that Rockwell generally remembered being in the Intoxilyzer room with defendant and "going through the process." The redirect examination continued:

"Q So when you look at that piece of paper [the checklist], did you make this record at or near the time that you went through—you testified that you checked this off as you went through these steps?

"A Yes.

"Q And you made these notations while these were fresh in your mind?

"A Correct.

"Q So at the time you made this checklist, were you filling it out accurately with the information then and there that you knew?

"A Yes.

"Q So then[,] relying on this checklist then with the checklist in front of you, are you able to say that you went through steps one through six with Mr. Rumler?

"A Based on the checklist, yes.

"* * * * *

"Q Is there any doubt in your mind based on this Department of Oregon State Police operator's checklist that you went through steps one through six with Mr. Rumler?

"A No doubt."

The trial court then ruled that, although Rockwell's testimony was "completely credible," the Intoxilyzer 5000 test results would be suppressed. The court explained its ruling as follows:

"The reason why they use these kind of records is for the purpose that we are talking about today but also so that when a person has this kind of specific information, that they can look back hopefully the day before, the morning of and then be remembering okay, that's right, I remember that guy and it was this and it was that and the other. So instead of just saying like if someone dies and we have a will, we don't have them to ask is this your will but that's why we have wills signed. But when you have a person testify, we need to be able to rely on their memory.

"I appreciate the fact that you are willing to say on the one hand I sure believe I did this and I have lots of reasons to believe that. This is my writing, this is what I always do and so how could I have not done it. And yet, what we need is a person's memory that that is actually what occurred.

"It doesn't mean that they have to remember all of those things by themself but the way I interpret it, it means that in being able to read a police report whether it's about a general item referenced in a report or specific things that are listed, which were enumerated well by Ms. Johnson as part of the intoxilizer [sic], that that has to be sufficient to refresh their memory. I don't fault you personally for that or professionally and I appreciate you being honest, but I don't find it's sufficient to go forward, so I will suppress that."

The state did not take issue with the court's reasoning or ruling. In particular, the prosecutor did not invoke OEC 803(5) or assert generally that, regardless of Rockwell's lack of present recollection, the content of the Intoxilyzer checklist was sufficient substantive evidence, as "past recollection recorded," that the prescribed Intoxilyzer protocol had been followed in this instance. Nor did the prosecutor invoke OEC 406 specifically or make any reference to Rockwell's testimony constituting substantively sufficient evidence of "habit."

On appeal, the state does advance both of those contentions—and with considerable persuasive force. First, the state asserts that the content of the completed Intoxilyzer checklist was admissible as substantive evidence under OEC 803(5) and that that evidence, if accepted as credible by the trial court,³ established compliance with the requisites for admissibility of breath test results. See ORS 813.160(1)(b).⁴ OEC 803(5) states that, notwithstanding the declarant's unavailability, there is an exception to the hearsay rule for

"[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party."

In particular, the state asserts that this case is indistinguishable from State v. Scally, 92 Or.App. 149, 758 P.2d 365 (1988), in which we held that a police officer's reading of his report of the circumstances of a DUII arrest was admissible under OEC 803(5). Second, the state argues that Rockwell's testimony was sufficient evidence of "habit" under OEC 406, which provides:

"(1) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

"(2) As used in this section, `habit' means a person's regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct."

The state asserts that Rockwell's testimony that he invariably followed the required Intoxilyzer protocol is sufficient to establish that he did so in this case.

Defendant does not dispute that Rockwell's testimony on redirect examination satisfied...