dissenting.
The majority reverses and remands this case on the basis of its conclusion that the trial court erred in excluding the arresting officer’s hearsay testimony. Evidential error is not presumed to be prejudicial. OEC lOáll);1 State v. Brown, 299 Or 143, 153, 699 P2d 1122 (1985). Because the error, if any, was harmless, I dissent.
Martino’s opinion that defendant was visibly intoxicated cannot support a conclusion that the stop of defendant was based on a reasonable suspicion that defendant was driving while intoxicated. ORS 131.615(1) provides:
“A peace officer who reasonably suspects that a person has committed a crime may stop the person * *
ORS 131.605(4) provides:
“ ‘Reasonably suspects’ means that a peace officer holds a belief that is reasonable under the totality of the circumstances * *
When reviewing the legitimacy of a stop, we must determine whether the “specific and articulable facts” known to the officer justified the stop. State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977). The requirement for specific and articulable facts enables the reviewing court to determine whether the officer’s suspicion was reasonable. State v. Lichty, 110 Or App 294, 297, 821 P2d 1114 (1991). Therefore, when conducting that inquiry,
“we look to the facts perceived by the officer who ordered the stop. In evaluating the sufficiency of the basis for the stop, our focus must be on objective facts and not on the intuitive conclusions of the officer.” State v. Hageman, 59 Or App 96, 100, 650 P2d 175 (1982). (Emphasis supplied.)
*573The officer testified that Martino told him that defendant appeared “visibly intoxicated.” Perhaps Martino concluded that defendant appeared intoxicated on the basis of his observation of defendant’s exhibiting symptoms of intoxication.2 Those observations, considered in the light of Martino’s training and experience, could reasonably lead him to that conclusion. However, the officer did not testify about what Martino actually observed.
The majority concludes that, because opinion testimony concerning intoxication is admissible substantive evidence in a trial, that evidence, standing alone, is sufficient to support a finding that a stop was based on reasonable suspicion. However, by so concluding, the majority confuses the distinction between ‘ ‘substantive evidence” and “specific and articulable facts.”
The function of the finder of fact at a trial is to determine what facts actually exist and then to apply the law to those facts to determine the legal consequences. In that context, opinion testimony concerning intoxication could aid the finder of fact in determining whether the ultimate fact of intoxication existed. Accordingly, the evidence is admissible in a trial. Guedon v. Rooney, 160 Or 621, 638, 87 P2d 209 (1939).
On the other hand, the function of a judge hearing a motion to suppress is to review the facts to determine if a police officer’s conduct based on those facts was permissible. In short, the facts presented must place the judge in the position of the officer in the field so that the judge can determine the validity of the officer’s actions. In that context, opinion testimony concerning intoxication will not facilitate a *574court’s review. Knowing what the officer concluded will not aid the court in determining whether that conclusion was valid.
In State v. Kimmel, 82 Or App 486, 728 P2d 894 (1986), a police officer stopped the defendant, because he suspected that the defendant was driving while intoxicated. The officer testified that the defendant was inattentive and had a flushed face and watery eyes. We concluded that those specific and articulable facts were insufficient to support a reasonable suspicion to justify the stop. It would be incongruous for us to hold now that an officer who merely concludes that a defendant appeared intoxicated, but does not state the basis for that conclusion, presents specific and articulable facts sufficient to justify a stop.
Specific and articulable facts are those that form the basis of a conclusion, not the conclusion itself. State v. Lichty, supra, 110 Or App at 297. Because the state did not inform the court about what observations Martino relied on in concluding that defendant appeared intoxicated, it was impossible for the court to determine independently whether his conclusion was reasonable. A conclusion cannot be converted into a fact simply because the person relaying the conclusion is deemed reliable. Accordingly, despite the alleged evidentiary error, the court properly granted defendant’s motion to suppress.
I dissent.
OEC 103(1) provides:
“Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * *
State v. Clark, 286 Or 33, 39-40, 593 P2d 123 (1979), says that symptoms indicative of intoxication include, but are not limited to:
“(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”