Filed: May 10, 2012
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON
Respondent on Review,
v.
JAVIER EUMANA-MORANCHEL,
Petitioner on Review.
(CC 081053188; CA A142632; SC S059602)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 9, 2012.
Erik Blumenthal, Deputy Public Defender, Salem, argued the cause and filed the
brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Matthew J. Lysne, Assistant Attorney General, Salem, argued the cause and filed
the brief for respondent on review. With him on the brief were John R. Kroger, Attorney
General, and Anna M. Joyce, Solicitor General.
BALMER, C. J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit court for further proceedings.
De Muniz, J., filed a dissenting opinion in which Durham and Walters, JJ., joined.
*Appeal from Multnomah County Circuit Court, Lewis B. Lawrence, Judge. 243
Or App 496, 260 P3d 501 (2011).
1 BALMER, C. J.
2 This case arises out of defendant's motion in limine to exclude the
3 testimony of the state's expert witness in his prosecution for driving under the influence
4 of intoxicants (DUII). The issue presented is whether the state can introduce an expert's
5 testimony to prove that defendant's blood alcohol content (BAC) was over the legal limit
6 of .08 percent when a police officer stopped him for driving erratically, even though
7 defendant's BAC was under the legal limit at the time of his breath test, approximately an
8 hour and a half later. At the pretrial hearing on defendant's motion, the trial court
9 excluded the expert's testimony interpreting defendant's breath test results to the extent
10 that that testimony would explain that defendant's BAC was over .08 percent at the time
11 he was driving. The state filed an interlocutory appeal of that ruling and the Court of
12 Appeals reversed, concluding that the expert's testimony was derived from a chemical
13 analysis of defendant's breath and was, therefore, admissible. State v. Eumana-
14 Moranchel, 243 Or App 496, 260 P3d 501 (2011). We now affirm the decision of the
15 Court of Appeals.
16 The parties stipulated to the following facts for purposes of the hearing on
17 defendant's motion in limine. On September 27, 2008, at 3:08 a.m., a police officer
18 stopped defendant on a public road in Multnomah County after the officer observed
19 defendant's pickup truck weaving across the center line. The officer noticed that
20 defendant's eyes were glassy and that his movements were slow and lethargic. Defendant
21 told the officer that he had had three beers that evening, but had had no alcohol since 2:00
22 a.m., when the bars closed. A second officer arrived on the scene. She noted the smell of
1 alcohol emanating from defendant's truck. She administered field sobriety tests, which
2 defendant failed. The officer arrested defendant for DUII, advised him of his Miranda
3 rights, and transported him to the police station. At 4:42 a.m., the officer administered a
4 breath test that measured defendant's BAC at .064 percent, which was below the legal
5 limit of .08 percent.1
6 Defendant was charged by information with "misdemeanor driving while
7 under the influence of intoxicants." The offense of driving under the influence of
8 intoxicants is defined in ORS 813.010(1), which provides:
9 "A person commits the offense of driving while under the influence
10 of intoxicants if the person drives a vehicle while the person:
11 "(a) Has 0.08 percent or more by weight of alcohol in the blood of
12 the person as shown by chemical analysis of the breath or blood of the
13 person made under ORS 813.100, 813.140 or 813.150;
14 "(b) Is under the influence of intoxicating liquor, a controlled
15 substance or an inhalant; or
16 "(c) Is under the influence of any combination of intoxicating liquor,
17 an inhalant and a controlled substance."
18 The information did not identify a particular paragraph of ORS 813.010
19 that the state accused defendant of violating. The state, thus, was free to establish at trial
20 that defendant violated ORS 813.010 either by driving while impaired, under ORS
21 813.010(1)(b) or (c), or by driving with a BAC of at least .08 percent, under ORS
1
The officer first administered a breath test at approximately 4:30 a.m. that
measured defendant's BAC at .064 percent. The parties and the expert have relied on the
second, 4:42 a.m. breath test result in this case and we do the same in this opinion.
2
1 813.010(1)(a). See State v. King, 316 Or 437, 446, 852 P2d 190 (1993), overruled in part
2 on other grounds by Farmers Ins. Co. v. Mowry, 350 Or 686, 697, 261 P3d 1 (2011)
3 (ORS 813.010(1)(a), (b), and (c) describe single offense, and jury need not agree on
4 which test results (BAC or field sobriety tests or combination) established that the driver
5 was under the influence).
6 Before trial, the state indicated that it intended to offer an expert's
7 testimony to establish defendant's guilt under ORS 813.010(1)(a) -- to prove that
8 defendant drove with a BAC of .08 percent -- notwithstanding that his BAC at the time of
9 the test was below that legal limit. As noted, defendant moved in limine to exclude that
10 testimony.
11 At the hearing on the motion in limine, the prosecution proffered the
12 testimony of Shane Bessett, an expert in the field of alcohol absorption and dissipation, to
13 establish that, although defendant's BAC at the time of his breath test was .064 percent,
14 his BAC when he was stopped, one hour and 34 minutes earlier, was between .08 and .10
15 percent and, therefore, above the legal limit. Bessett testified that he had arrived at that
16 range by using a method called retrograde extrapolation, which he explained as follows:
17 Bessett testified that men and women eliminate alcohol at an average rate of .018 percent
18 per hour,2 but that the specific elimination rate for any particular individual varies
19 according to his or her tolerance for alcohol. The least alcohol-tolerant drinker would
2
Bessett testified that men and women eliminate alcohol at the same rates.
3
1 eliminate alcohol at a rate of .01 percent per hour, while the most tolerant drinker would
2 eliminate alcohol at a rate of up to .025 percent per hour.3 For that reason, Bessett
3 testified, retrograde extrapolation would produce a range for a driver's BAC at any given
4 time, rather than a single, specific number. Further, Bessett testified, to calculate a
5 person's BAC at a given time, he would need to know the time of the test, the time of the
6 driver's last consumption of alcohol, and the time that the driver was stopped.
7 Bessett testified that, in this case, based on information in the police
8 reports, he assumed that defendant had stopped drinking by 2:00 a.m., that he was
9 stopped and arrested at 3:08 a.m., and that the breath test at 4:42 a.m. revealed that his
10 BAC was .064 percent.4 Based on those assumptions, Bessett then calculated that
11 defendant, having eliminated the alcohol in his blood at a rate of between .01 and .025
12 percent per hour for one hour and 34 minutes, likely would have had a BAC of between
13 .08 and .10 percent when he was driving.
14 The trial court granted defendant's motion to exclude Bessett's testimony.
3
Because those parameters would encompass "virtually everyone," which he
described as 98 out of 100 people tested, Bessett testified that there was no margin of
error.
4
Bessett testified that it was important to know when a subject stopped
drinking, because 80 percent of alcohol is absorbed into the bloodstream within five to 10
minutes of consumption, and all alcohol consumed ordinarily is absorbed into the
bloodstream within 30 to 60 minutes. In this case, Bessett assumed that, when defendant
was stopped at 3:08 a.m., one hour and eight minutes after defendant stopped drinking,
defendant would have been eliminating alcohol, not absorbing it. Defendant did not
challenge that assumption.
4
1 In reaching that result, the court concluded that it was bound by the Court of Appeals
2 opinion in State v. Johnson, 219 Or App 200, 182 P3d 256 (2008), which, in its view,
3 prevented the state from convicting a defendant for DUII unless a chemical analysis,
4 standing alone, proved the defendant's BAC to be at least .08 percent.5 The trial court
5 entered an order excluding
6 "(1) Any testimony by State's expert witness referring to BAC
7 content if that testimony would permit the jury to convict defendant based
8 on his BAC.
9 "(2) Any testimony by State's expert witness that his BAC at the
10 time of the alleged stop was at least .08 percent."
11 That ruling effectively prevented the state from establishing defendant's guilt under ORS
12 813.010(1)(a).
13 The state appealed that pretrial ruling, and the Court of Appeals reversed,
14 concluding that Bessett's testimony concerning retrograde extrapolation was admissible,
15 because it "was derived, using scientific principles, from a chemical analysis of
16 defendant's breath." Eumana-Moranchel, 243 Or App at 502.
17 In this court, defendant argues that ORS 813.010 provides three methods
18 for the state to prove that a defendant was driving under the influence of intoxicants.
5
In Johnson, a breath test revealed that the defendant's BAC was .07 percent
at the time of the test, approximately an hour after the defendant was stopped. At the
defendant's trial in that case, the arresting officer testified that, based on his observations,
the defendant's BAC was at or above .08 percent at the time he was stopped. The Court
of Appeals accepted the state's concession that evidence of observable indicia of
intoxication is not admissible to prove that a defendant's BAC exceeded the legal limit,
because it is not based on a chemical test of the defendant's breath or blood. 219 Or App
at 204-05.
5
1 Two of those methods, set out in ORS 813.010(1)(b) and (c), require proof that the
2 defendant drove while impaired by alcohol or controlled substances. The third, set out in
3 ORS 813.010(1)(a), does not require proof of impairment. Rather, that paragraph
4 requires only that the state prove that the defendant drove with a BAC of .08 percent or
5 more "as shown by chemical analysis of the breath or blood of the person." (Emphasis
6 added.) Defendant argues that, under the plain words of ORS 813.010(1)(a), only a
7 chemical analysis can show a BAC of .08 percent or more. Retrograde extrapolation is a
8 formula, not a chemical analysis, defendant asserts, and, therefore, it cannot be used to
9 show a particular BAC. He contends that only the numerical result of the
10 chemical