State v. Hedgpeth , 365 Or. 724 ( 2019 )

724
Argued and submitted March 1, at Willamette College of Law, Salem, Oregon;
decision of Court of Appeals affirmed, judgment of circuit court reversed, and
case remanded to that court for further proceedings November 21, 2019
STATE OF OREGON,
Petitioner on Review,
v.
JOHN CHARLES HEDGPETH,
Respondent on Review.
(CC 14CR1014) (CA A158196) (SC S065921)
452 P3d 948
Defendant was convicted for driving under the influence of intoxicants
(DUII), based only on the fact that his BAC was .09 percent two hours after he
drove and that he consumed no alcohol between the time he was pulled over and
the breath test. The trial court determined that defendant’s BAC was at least .08
percent at the time of driving and found him guilty of DUII. Defendant argued
that those facts were insufficient to permit a non-speculative inference that his
BAC was over the legal limit, .08 percent, at the time he drove. The Court of
Appeals reversed. Held: On the facts, the generic proposition that blood alcohol
dissipates over time was not enough to permit a non-speculative inference that
defendant’s BAC was over the legal limit at the time he drove. Balmer, J., filed a
dissenting opinion in which Baldwin, S. J., joined.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is reversed, and the case is remanded to that court for further proceedings.
On review from the Court of Appeals.*
Paul L. Smith, Deputy Solicitor General, Salem, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
Emily P. Seltzer, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the brief
for the respondent on review. Also on the brief was Ernest G.
Lannet, Chief Deputy Defender.
Before Walters, Chief Justice, and Balmer, Nakamoto,
Flynn, Duncan, and Nelson, Justices, and Baldwin, Senior
Justice pro tempore.**
______________
** Appeal from Coos County Circuit Court, Richard L. Barron, Judge. 290
Or App 399, 415 P3d 1080 (2018).
** Garrett, J., did not participate in the consideration or decision of this case.
Cite as 365 Or 724 (2019) 725
FLYNN, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to that court for further proceedings.
Balmer, J., dissented and filed an opinion, in which
Baldwin, S. J., joined.
726 State v. Hedgpeth
FLYNN, J.
This case arises out of defendant’s challenge to his
conviction for driving under the influence of intoxicants
(DUII) by driving with a blood alcohol concentration (BAC)
of at least .08 percent. The record consisted solely of evi-
dence that a breathalyzer test measured defendant’s BAC as
.09 percent nearly two hours after he drove and that defen-
dant had consumed no additional alcohol in the interim. The
Court of Appeals agreed with defendant that the state’s evi-
dence was insufficient to demonstrate that defendant drove
with a BAC of at least .08 percent. State v. Hedgpeth, 290 Or
App 399, 415 P3d 1080, rev allowed, 363 Or 119 (2018). We
allowed the state’s petition for review to consider whether
“common knowledge” of the proposition that blood alcohol
levels dissipate over time permits a factfinder reasonably
to infer that defendant drove with a blood alcohol level
above the legal limit from evidence that defendant’s blood
alcohol level two hours later was .09 percent, with no con-
sumption in the interim. On those bare facts, we conclude
that something more than the generic proposition that blood
alcohol levels dissipate over time is needed to permit a non-
speculative inference that the defendant drove with a blood
alcohol level above the legal limit.
I. BACKGROUND
A. DUII Laws Generally
Oregon has had laws prohibiting driving under the
influence of intoxicants for more than 100 years. See State
v. Miller, 309 Or 362, 368, 788 P2d 974 (1990) (citing Or
Laws 1917, ch 29, § 1). The crime is currently codified at
ORS 813.010, which provides,
“(1) A person commits the offense of driving while
under the influence of intoxicants if the person drives a
vehicle while the person:
“(a) Has 0.08 percent or more by weight of alcohol in
the blood of the person as shown by chemical analysis of
the breath or blood of the person made under ORS 813.100,
813.140 or 813.150;
“(b) Is under the influence of intoxicating liquor, can-
nabis, a controlled substance or an inhalant; or
Cite as 365 Or 724 (2019) 727
“(c) Is under the influence of any combination of intox-
icating liquor, cannabis, a controlled substance and an
inhalant.”1
As we have explained, the statute describes alter-
native methods for proving that a person drove while under
the influence of intoxicants:
“The state can establish that the defendant’s BAC was .08
percent or more, ORS 813.010(1)(a), regardless of observ-
able symptoms, or the state can prove that * * * the defen-
dant was adversely affected by intoxicants to a perceptible
degree, ORS 813.010(1)(b), (c).”
State v. Eumana-Moranchel, 352 Or 1, 7-8, 277 P3d 549
(2012); see also State v. King, 316 Or 437, 446, 852 P2d
190 (1993) (ORS 813.010(1)(a) and (b) describe a “single
offense” with two elements—that the accused drove a motor
vehicle, and that the accused was under the influence of
intoxicants—and jurors did not need to agree on whether
the state had proven the latter element by way of test results
or otherwise). We have emphasized that the first method,
which we have referred to as the per se method of proving
DUII, reflects the legislature’s apparent assumption,
“based upon scientific studies and accepted medical knowl-
edge, that the physical and mental condition of a driver
with such a level of blood alcohol is impaired to such a
degree as to make it unsafe for him to drive a motor vehi-
cle, regardless of observable physical symptoms.”
State v. Clark, 286 Or 33, 39, 593 P2d 123 (1979).
We also have emphasized two features of the stat-
ute that complicate the state’s burden of proof. First, under
either method of proof, “the state must prove that the driver
had the proscribed BAC or was perceptibly impaired at the
time that he or she was driving.” Eumana-Moranchel, 352
Or at 8 (emphasis in original). Second, proof of a per se vio-
lation based on blood alcohol concentration must be “shown
by chemical analysis of the breath or blood.” State v. O’Key,
321 Or 285, 308, 899 P2d 663 (1995) (explaining that state
1
The current version of ORS 813.010(1) reflects 2017 amendments to address
cannabis but is otherwise identical to the 2015 provision that governs defendant’s
conviction. Or Laws 2017, ch 21, § 80.
728 State v. Hedgpeth
could not rely solely on results of horizontal gaze nystagmus
test (HGN) to prove per se violation under ORS 813.010(1)(a)
because “HGN test does not involve a chemical analysis of
breath or blood”).
Those requirements present a challenge when the
state seeks to prove that a person has committed DUII
based only on evidence from a chemical analysis of blood
alcohol concentrations because, as we observed in Eumana-
Moranchel, “it is virtually always the case that the chem-
ical test of the breath or blood is administered some time
after the person has stopped driving.” 352 Or at 9 (emphasis
in original). From that premise and the additional premise
that “a person’s BAC changes during the time between being
stopped and undergoing a breath test[,] * * * [i]t follows that
a chemical test result alone never ‘shows’ the actual BAC of
the driver at the time of driving.” Id. Thus, as we empha-
sized, “[s]omething more is necessary to connect the breath
test result to the statutory requirement of a BAC of .08 per-
cent or more at the time of driving.” Id. at 9-10.
B. Procedural History of the Case
For reasons of strategy that have no bearing on
this appeal, the state chose to prove that defendant com-
mitted the crime of DUII only under the per se method of
proof—proving that he drove with a BAC of at least .08.2
The evidence at trial consisted exclusively of testimony
from the arresting officer that (1) he had stopped defen-
dant for riding a motorcycle without a helmet; (2) he sub-
sequently took defendant into custody for DUII;3 (3) he took
defendant to the police station where a breathalyzer test
was administered one hour and 55 minutes after the stop;
(4) defendant did not consume alcohol between the time of
the stop and the administration of the breathalyzer test, and
(5) the breathalyzer result showed a BAC of 0.09. Defendant
2
Before trial, defendant had notified the state that he intended to offer evi-
dence that the ratio of breath alcohol to blood alcohol—the so-called “partition
ratio”—varies among individuals. The state believed that the evidence would be
irrelevant if it pursued only a per se theory of DUII under ORS 813.010(1)(a), so
it chose to proceed only under that theory. The trial court ultimately agreed with
the state’s assessment and refused to admit defendant’s evidence.
3
For reasons not relevant to this appeal, the trial court excluded evidence of
the officer’s observations that led the officer to arrest defendant for DUII.
Cite as 365 Or 724 (2019) 729
argued to the trial court that the evidence was insufficient
to permit a nonspeculative inference that his BAC was over
the legal limit at the time he drove, but the court disagreed.
Sitting as factfinder, the court explained: “I will find him
guilty because the only evidence before me is what he blew,
and I don’t have evidence at all that suggests one way or the
other what you do with the—with that to equate it with time
of driving. But that’s the evidence I have.”
On appeal, defendant renewed his challenge to
the sufficiency of the evidence, and the state responded by
arguing that the “common knowledge” that alcohol rates
dissipate over time permitted the factfinder to draw a rea-
sonable inference that defendant’s BAC was at least .08
at the time of driving. The Court of Appeals agreed with
defendant and reversed the conviction. The court reasoned
that “the factfinder cannot, at least on this record, apply
the common knowledge that blood alcohol goes up and down
over time to make a reasonable inference about when defen-
dant’s BAC likely reached .08 or above and whether that
occurred while defendant was driving.” Hedgpeth, 290 Or
App at 406. The Court of Appeals identified three possible
inferences that could be drawn: That defendant’s BAC was
above .08 when he drove; that it was at .08 when he drove;
or that it was under .08 when he drove. Id. at 407. Because
the state did not present “any evidence bearing on the move-
ment of alcohol through defendant’s body or the presence
of alcohol in defendant’s body at the time or shortly before
defendant drove,” the court concluded that “there is nothing
but speculation that guides a factfinder to select from one of
those three possible inferences.” Id. at 406, 407 (emphasis
in original).
This court allowed review to address the role of
inferences and “common knowledge” when a court tests the
sufficiency of evidence to permit a criminal conviction. As
we explain below, we agree with the conclusion of the Court
of Appeals that “common knowledge” is not enough on this
record to supply the “[s]omething more” that is “necessary to
connect the breath test result to the statutory requirement
of a BAC of .08 percent or more at the time of driving.” See
Eumana-Moranchel, 352 Or at 9-10.
730 State v. Hedgpeth
II. ANALYSIS
A. The Standard of Review for an MJOA
We turn to a preliminary dispute regarding the
legal standard for granting a motion for judgment of acquit-
tal.4 We have repeatedly explained that our standard for
reviewing the denial of a motion for judgment of acquittal
involves viewing the evidence in the “light most favorable to
the state” to determine if the “state presented sufficient evi-
dence from which a rational trier of fact, making reasonable
inferences,” could find the essential elements of the crime
beyond a reasonable doubt. State v. Clemente-Perez, 357 Or
748, 756, 762, 359 P3d 232 (2015); see also State v. Lupoli,
348 Or 346, 366, 234 P3d 117 (2010) (same).
According to the state, the trial court’s finding that
defendant had a BAC of at least .08 at the time that he was
driving was a reasonable inference from the evidence of
three predicate facts: 1) the trooper placed defendant under
arrest for DUII shortly after he observed defendant driving;
2) a chemical test performed nearly two hours later mea-
sured defendant’s BAC at .09 percent; and 3) defendant did
not drink in the interim.
However, defendant proposes that a “reasonable
inference” requires more precision. According to defendant,
“in order to make an inference, a factfinder must be able
to logically deduce a probable conclusion from the underly-
ing facts” through a “logical syllogism.” Defendant acknowl-
edges that a factfinder could infer, based on common experi-
ence, that people intoxicated by alcohol become less so over
time. But the factfinder could not, defendant asserts, infer
from that general knowledge and evidence of the later blood
alcohol test that defendant’s BAC would have been at least
0.08 at the time he drove. Defendant argues that, while it
4
Defendant did not expressly move for judgment of acquittal. Instead, he
argued to the trial court in closing argument that the evidence was insufficient to
permit a finding of guilt. Under the circumstances, defendant raised the issue in
a way that is equivalent to making a motion for judgment of acquittal. See State v.
Gonzalez-Valenzuela, 358 Or 451, 454 n 1, 365 P3d 116 (2015) (agreeing “with the
long-standing case law from the Court of Appeals that,” when a defendant opts
for a bench trial, a challenge to the legal sufficiency of the state’s evidence during
closing argument can be “the equivalent of a motion for judgment of acquittal” for
purposes of preserving the issue).
Cite as 365 Or 724 (2019) 731
is possible that his BAC declined between the time of driv-
ing and the time of testing, it also is possible that his BAC
was rising during at least part of that time and had not yet
reached .08 when he was driving. Because there was no evi-
dence to aid the factfinder in distinguishing between those
possibilities, defendant contends that there was no basis
for the factfinder to “logically deduce a probable conclusion
from the underlying facts.”
The decision of the Court of Appeals suggests that a
similar degree of precision governs the inquiry into whether
evidence permits a “reasonable inference” of guilt. In an
en banc decision, the Court of Appeals majority explained
that it understood the issue as “whether mere logic renders
probable that, when a person’s BAC is .09 percent one hour
and 45 minutes after he drove and he has not consumed
alcohol over that period, that person’s BAC was at least .08
at the time that he was driving.” Hedgpeth, 290 Or App at
404. The court reasoned that “it does not follow solely as a
matter of probability and logic that a person whose BAC is
measured at .09 percent would have necessarily had a BAC
of at least .08 percent an hour and 45 minutes earlier if he
or she consumed no alcohol during that intervening time
period.” Id. at 406-07.
The suggestion of defendant and the Court of
Appeals that reasonable inferences are limited to those
that follow “necessarily” from the established facts, or as
a matter of probability through “logical syllogism,” unduly
narrows the test that courts must apply when reviewing a
motion for judgment of acquittal. “Probability” generally
refers to something that is “more likely than not.” See, e.g.,
State v. Longo, 341 Or 580, 603-04, 148 P3d 892 (2006) (not-
ing that “probability” of future dangerousness as used in
ORS 163.150(1)(b)(B) meant “more likely than not”); State
v. Vasquez-Villagomez, 346 Or 12, 23, 203 P3d 193 (2009)
(probable cause standard set forth in ORS 131.005(11) states
standard as “more likely than not”); Joshi v. Providence
Health System, 342 Or 152, 159, 149 P3d 1164 (2006) (noting
that “reasonable probability” causation standard for negli-
gence claim equated to “more likely than not”).
But a court evaluating a motion for judgment of
acquittal does not base its decision on whether any particular
732 State v. Hedgpeth
inference to be drawn from the evidence is “more likely than
not.” Rather, our decisions make clear that the evidence in
a case can give rise to more than one reasonable inference,
and when it does, the factfinder is allowed to decide the case.
See, e.g., State v. Hall, 327 Or 568, 574, 966 P2d 208 (1998)
(defendant was not entitled to judgment of acquittal, where
factfinder “reasonably could infer” three different things from
the evidence offered to prove an element of the offense but,
because “[a]ny of those inferences is reasonable * * * it was
appropriate to allow the jury to decide the question”); State v.
Walker, 356 Or 4, 6, 333 P3d 316 (2014) (“court gives the state
the benefit of all reasonable inferences that can be drawn
from the evidence”). The notion that reasonable inferences are
those that follow necessarily from the state’s evidence cannot
be squared with our case law that the evidence may give rise
to multiple reasonable inferences and that the choice between
those reasonable inferences is a matter for the jury.
Nevertheless, defendant and the Court of Appeals
are not wrong to emphasize the court’s obligation to distin-
guish between inferences that can be reasonably drawn from
the evidence and inferences that are mere speculation. We
have emphasized that facts in issue can “be established by
reasonable inferences, but not through speculation.” State v.
Jesse, 360 Or 584, 597, 385 P3d 1063 (2016). This court has
identified certain inferences as impermissible speculation
and, thus, held the evidence insufficient to support a reason-
able inference. For example, in State v. Daniels, 348 Or 513,
519, 234 P3d 976 (2010), we emphasized that the state was
relying “on speculation” to prove that the defendant had once
possessed drugs that his girlfriend was carrying in a plastic
baggie. Pointing to evidence that the defendant in Daniels
had plastic baggies in his house and had sold drugs within
the prior month, the state argued that a jury reasonably
could infer possession either by inferring that the defendant
had supplied his girlfriend with the drugs she carried or by
inferring that he had placed the drugs in her bag to avoid
having them discovered by the police. Id. This court empha-
sized that “[a]lthough those scenarios are possible, they rely
on speculation rather than reasonable inferences,” and we
held that the defendant was entitled to a motion for judg-
ment of acquittal. Id. at 519, 522.
Cite as 365 Or 724 (2019) 733
Defendant and the Court of Appeals also are not
wrong to suggest that logic plays some role in determining
whether evidence permits a “reasonable inference.” We cau-
tioned in Jesse that “[t]he line between permissible infer-
ences and impermissible speculation is difficult to articu-
late with precision,” but we explained that “federal courts
usefully have described that line” as “drawn by the laws of
logic.” 360 Or at 597 n 7 (quoting Tose v. First Pennsylvania
Bank, N.A., 648 F2d 879, 895 (3d Cir), cert den, 454 US 893,
102 S Ct 390, 70 L Ed 2d 208 (1981), abrogated on other
grounds by Griggs v. Provident Consumer Discount Co., 459
US 56, 103 S Ct 400, 74 L Ed 2d 225 (1982)).
However, references to “logic” do not mean that
a reasonable inference must follow “necessarily” or in the
form of a “logical syllogism.” “Logic” includes “principles of
deduction or inference.” Webster’s Third New Int’l Dictionary
1330 (unabridged ed 2002). And it has long been settled law
in Oregon that a party may rely on reasonable inferences
arising from circumstantial evidence to establish elements
of a criminal offense. See, e.g., State v. Colson, 251 Or 624,
625, 447 P2d 302 (1968) (“law is settled that the commission
of a crime may be proved solely by circumstantial evidence”);
see also Hall, 327 Or at 570 (“[w]hen analyzing the suffi-
ciency of the evidence,” court makes “no distinction between
direct and circumstantial evidence as to the degree of proof
required”).
When a court considers a motion for judgment of
acquittal, the question is whether the factfinder reasonably
could infer that a particular fact flows from other proven
facts, not whether the inference necessarily flows from the
proven facts. See id. at 574 (because factfinder could “rea-
sonably infer” three different things from the evidence, “it
was appropriate to allow the jury to decide the question”).
B. “Common Knowledge” to Connect Defendant’s BAC Test
Result to His Earlier BAC
Ultimately, the resolution of this case turns both
on the line between speculation and inference and on the
extent to which common knowledge of the body’s reaction
734 State v. Hedgpeth
to alcohol bridges that gap. The state does not dispute that
“[s]omething more” than a blood alcohol level obtained
nearly two hours after driving is needed for the factfinder
reasonably to infer that defendant’s BAC was at least .08 at
the time he drove, as we explained in Eumana-Moranchel,
352 Or at 9-10. And defendant does not dispute that a fact-
finder’s common knowledge can supply the bridge to a fact-
finder’s reasonable inference. See, e.g., Dodge v. Tradewell
Stores, 256 Or 514, 516, 474 P2d 745 (1970) (“jury is enti-
tled to draw inferences from matters of common knowl-
edge”). Defendant also does not dispute that it is a matter
of common knowledge that alcohol dissipates from the blood
over time. He acknowledges our cases that have seemingly
accepted that proposition. See Eumana-Moranchel, 352 Or at
10 (describing State v. Parker, 317 Or 225, 232 n 9, 855 P2d
636 (1993), as “stating, in dictum, that, in [a] case where the
defendant had a BAC of .07 percent five hours after driving,
the state did not need to call an expert on the dissipation
of blood alcohol content, because the fact that blood alco-
hol dissipates over time is common knowledge”).5 However,
defendant and the state propose very different answers to
the question of whether common knowledge that blood alco-
hol dissipates over time is sufficient to permit a reasonable
inference in this case that defendant had a BAC of at least
.08 two hours before the test.
Defendant contends that the common knowledge
that blood alcohol dissipates over time is too general on this
record to bridge the gap between his breath-test BAC of .09
and his BAC two hours earlier because how a particular
body processes alcohol in a particular situation depends on
numerous factors, none of which are addressed by the evi-
dence here. Defendant does not endorse the more extreme
suggestion of the Court of Appeals, that the state needed
evidence “on rates of accumulation and dissipation” to con-
nect defendant’s BAC test to his BAC at the time of driving.
Hedgpeth, 290 Or App at 406. He observes that the gap might
be filled by something other than expert testimony, such as
evidence that a defendant showed symptoms of impairment
5
Eumana-Moranchel did not comment on whether the state must call an
expert to prove a case of per se DUII when the breath test shows a BAC under the
legal limit. That is an open question that has not been resolved by this court.
Cite as 365 Or 724 (2019) 735
at the time he or she was stopped.6 But he argues that the
bare record in this case is insufficient to permit more than
speculation that defendant’s BAC was at least .08 at the
time he drove.7
The state emphasizes that “the process of alcohol
absorption and dissipation is a matter of common knowl-
edge, even if the specific rates of absorption and dissipation
are not” (emphasis in brief). According to the state, that
general knowledge permitted the jury reasonably to infer
that defendant’s BAC was lower after a period of nearly two
hours without additional consumption than his BAC level
had been when he drove. The state relies on a statement
that this court made in Eumana-Moranchel. In that case,
after emphasizing that “the state must be able to offer rel-
evant evidence to explain how a driver’s BAC at the time of
the test ‘shows’ that he or she had .08 percent or more by
weight of alcohol in the bloodstream at that earlier point,”
we observed, “[t]hat explanation can be simply an infer-
ence that blood alcohol rates dissipate over time, or, as in
this case, an expert’s testimony explaining that retrograde
extrapolation shows the actual presence of the prohibited
percentage of alcohol in a driver’s blood when he or she was
driving.” 352 Or at 10, 11. The state seizes on that reference
to the possibility that an “inference that blood alcohol rates
dissipate over time” can explain “how a driver’s BAC at the
time of the test ‘shows’ that he or she had .08 percent or
more” at the time of driving as confirmation that “common
knowledge” supplies the explanation in this case.
The Court of Appeals at least implicitly concluded
that our observation in Eumana-Moranchel was dictum,
and does not resolve this case, when it held that common
knowledge cannot “bear the weight” of proving defendant’s
6
As our decisions in Clark and Eumana-Moranchel make clear, such evi-
dence is relevant even to prove a per se violation of ORS 813.010 because it can be
used by the factfinder as the “[s]omething more” that “is necessary to connect the
breath result to the statutory requirement of a BAC of .08 percent or more at the
time of driving.” Eumana-Moranchel, 352 Or at 9-10.
7
The limited record in this case is a product of the trial court’s ruling—
based on an erroneous interpretation of O’Key—that evidence “other than the
exact chemical test” was irrelevant given the state’s election to prove “a per se
DUII .08 or above blood alcohol.” But the state did not cross-assign error to the
ruling in the Court of Appeals.
736 State v. Hedgpeth
BAC on a record like this. See Hedgpeth, 290 Or App at 405.
Before explaining why we agree with the Court of Appeals
that “common knowledge” is insufficient to bear such weight
in this case, we begin with an examination of the power of
“common knowledge” to fill evidentiary gaps.
In general, common knowledge can be understood
as information that is commonly known to the average per-
son. See, e.g., Meyers v. Oasis Sanitorium, Inc., 224 Or 414,
418, 356 P2d 159 (1960) (“matter of common knowledge that
a linoleum floor becomes slippery while it is being mopped”);
Black’s Law Dictionary 334 (10th ed 2014) (defining “common
knowledge” as a “fact that is so widely known that a court
may accept it as true without proof”). Scholars have pro-
posed that the rationale for allowing the factfinder to base a
decision on a commonly known fact is that the high degree of
reliability or lack of disagreement in the community makes
it unnecessary to introduce formal evidence to establish the
point. See generally 2 McCormick On Evidence § 329 (7th ed
2013); Richard M. Fraher, Adjudicative Facts, Non-Evidence
Facts, and Permissible Jury Background Information, 62 Ind
LJ 333, 342-43 (1987) (explaining that treatises, case law,
and statutes “suggest that the basis for letting information
get to the jury without the test of the adversarial process is
either the high reliability of the information or the lack of
disagreement in the community”).8
In the context of alcohol intoxication, this court has
identified a variety of propositions that are matters of com-
mon knowledge. For example, this court long ago declared
the proposition that certain beverages are intoxicating
liquors to be a matter of common knowledge. State v.
Carmody, 50 Or 1, 7, 91 P 446 (1907) (finding that “[a]s long
as laws for licensing the sale of intoxicating liquors have
existed, brandy, whisky, gin, rum and other alcoholic liquids
have been held to be intoxicating liquors per se * * * because
it is within the common knowledge * * * that they are intoxi-
cating liquors”); see also State v. Edwards, 106 Or 58, 64, 210
8
In any discussion of “common knowledge,” it is worth noting that even
commonly understood propositions can be wrong. See, e.g., 1 Weinstein’s Federal
Evidence § 201.11 (2019) (observing that, as “circumstances and society change,
so does our ‘common knowledge,’ including the facts that meet with unconditional
acceptance by the public”).
Cite as 365 Or 724 (2019) 737
P 1079 (1922) (common knowledge that beer is intoxicating
liquor).9
This court also has identified as a matter of com-
mon knowledge the effects that intoxicating liquor may have
on individuals. See Chapman v. Mayfield, 358 Or 196, 218,
361 P3d 566 (2015) (common knowledge that intoxicated
persons experience impaired judgment); Lynn v. Stinnette,
147 Or 105, 114, 31 P2d 764 (1934) (“It is common knowl-
edge that intoxicating liquor has varying effects on differ-
ent individuals. Some it impels to boisterousness and loud
talking; others, to quarrelsomeness and sullenness.”); State
v. Noble, 119 Or 674, 678, 250 P 833 (1926) (“matter of com-
mon knowledge” that drinking liquor “has some effect upon
the person drinking it, and that this effect continues for a
longer or shorter period, according to the amount drunk,
and the individual drinking it”); see also Clark, 286 Or at
39-40 (listing observable signs of alcohol intoxication,10 and
explaining that common knowledge of those signs could pro-
vide foundation to make evidence of the “absence of such
observable symptoms” relevant for the purpose of challeng-
ing the accuracy of BAC test result).
However, we have also emphasized that certain
effects of alcohol consumption are beyond the realm of com-
mon knowledge. See, e.g., O’Key, 321 Or at 297 (explaining
that “[t]he relationship between the effects of alcohol on the
central nervous system, the nystagmus phenomenon, and
the HGN test is not within the realm of common knowledge
of the average person”). Moreover, and of particular rele-
vance to the present dispute, this court has emphasized that
common knowledge of a general proposition regarding the
effects of alcohol does not equate to knowledge of the effects
in a specific instance. For example, in Eumana-Moranchel,
90
The tradition of allowing the factfinder to rely on facts of “common knowl-
edge” may be a hold-over from the historical role of juries at English common
law as a factfinding body that relied exclusively upon its own knowledge of
events within the county. See State v. Mills, 354 Or 350, 358, 312 P3d 515 (2013)
(explaining historical role of juror knowledge about county events as source of
venue requirement).
10
The court took judicial notice of symptoms such as flushed appearance,
lack of coordination, speech difficulties, dizziness and nausea, among other
things. Clark, 286 Or at 39-40. We do not suggest that judicial notice and common
knowledge are necessarily identical concepts.
738 State v. Hedgpeth
352 Or at 10, we observed that, although the proposition
that alcohol dissipates over time may be a matter of com-
mon knowledge, the rate of dissipation in a specific instance
is not a matter of common knowledge. See also Noble, 119
Or at 678 (explaining that, although it was a “matter of
common knowledge” that drinking liquor “has some effect
upon the person drinking it,” bare proof of consumption of
liquor was insufficient to prove that person was under the
influence of intoxicants because “[t]he effects resulting from
the drinking of intoxicating liquor[s] are manifested in var-
ious ways”). Compare State v. Sprague, 171 Or 372, 377, 136
P2d 685 (1943) (observing that it is common knowledge that
some intoxicated men are “brutal and quarrelsome”) with
Chapman, 358 Or at 218 (concluding that “general knowl-
edge is not sufficient to permit a jury to decide, from the fact
of overservice alone, that one who serves alcohol to a visibly
intoxicated person should reasonably have expected that
that person would commit an assault”). The “common knowl-
edge” concerning alcohol that we draw from this court’s ear-
lier case law described above is that alcohol consumption
causes intoxication, but also that its effects last “for a longer
or shorter period according to the amount drunk, and the
individual drinking it.” Noble, 119 Or at 678.
In the context of that authority, our reference in
Eumana-Moranchel to an “inference that blood alcohol rates
dissipate over time” should not be understood as a holding
that resolves this case. 352 Or at 11. Eumana-Moranchel
did not address the extent to which the state can rely on
common knowledge to prove the defendant’s BAC at the
time of driving; rather, the issue in Eumana-Moranchel was
whether the state was entitled to rely on expert testimony
regarding blood alcohol dissipation to show the relationship
between the defendant’s BAC at the time of driving and
his BAC as measured by a later breath test. Although we
described an earlier decision as having “suggested” in dic-
tum that common knowledge about alcohol dissipation made
it unnecessary for the state to call an expert on the dissipa-
tion of blood alcohol content, id. at 10 (quoting Parker, 317 Or
at 232 n 9), we did not decide—and we have never decided—
that common knowledge alone is sufficient to provide the
“something more” that can establish the connection between
Cite as 365 Or 724 (2019) 739
a BAC result at the time of testing with BAC at the time of
driving. Indeed, our emphasis on the state’s valid reasons
for introducing the expert testimony in Eumana-Moranchel
suggests that common knowledge will not be sufficient to
permit a reasonable inference that a defendant drove with a
BAC over the legal limit.
C. Application to This Case
Under the circumstances of this case, the general
proposition that blood alcohol concentrations fall over time
is too general to permit any reasonable inference about
defendant’s blood alcohol concentration at the time that
he drove. The parties agree that various factors affect the
rates of alcohol absorption and dissipation, and they provide
citations to authorities that describe the scientific process
of using a later BAC test to identify BAC levels at a point
two hours earlier.11 Those authorities describe a process that
is more complicated than simply applying the general rule
that blood alcohol dissipates over time. Indeed, as the cited
authorities reveal, the complexity can leave even experts
unable to reach a nonspeculative decision on a record as
spare as the record in this case.
Defendant cites Eumana-Moranchel, in which we
explained that the state sought to offer testimony from
an expert in alcohol absorption and dissipation that, given
information about when the defendant stopped drinking, he
could use the defendant’s later breath test result to esti-
mate a range for the defendant’s BAC at the time of driving,
through “a method called retrograde extrapolation.” 352 Or
at 5. We then described in detail the expert’s explanation of
the variables affecting that scientific extrapolation:
“Bessett testified that men and women eliminate alcohol
at an average rate of .018 percent per hour, but that the
specific elimination rate for any particular individual var-
ies according to his or her tolerance for alcohol. The least
alcohol-tolerant drinker would eliminate alcohol at a rate of
11
The state agrees that “variability in specific rates of alcohol absorption
and dissipation make it possible that someone’s BAC may still be rising—and not
yet at .08 percent—at the time of driving” but disagrees about the likelihood of
that scenario in a given case and the significance of that possibility in evaluating
the sufficiency of the evidence.
740 State v. Hedgpeth
.01 percent per hour, while the most tolerant drinker would
eliminate alcohol at a rate of up to .025 percent per hour.
For that reason, Bessett testified, retrograde extrapolation
would produce a range for a driver’s BAC at any given time,
rather than a single, specific number.”
Id. (footnotes omitted, emphasis in original). We added that
the expert “testified [that], to calculate a person’s BAC at a
given time, he would need to know the time of the test, the
time of the driver’s last consumption of alcohol, and the time
that the driver was stopped.” Id.
As defendant emphasizes, scientific evidence described
in cases from both the United States Supreme Court and
the Oregon Court of Appeals also consistently demonstrates
the complexity and variability that limit an expert’s abil-
ity to predict how a particular person will eliminate alcohol
on a particular occasion. See Missouri v. McNeely, 569 US
141, 152, 133 S Ct 1552, 185 L Ed 2d 696 (2013) (“Testimony
before the trial court in this case indicated that the percent-
age of alcohol in an individual’s blood typically decreases by
approximately 0.015 percent to 0.02 percent per hour once
the alcohol has been fully absorbed * * *. More precise cal-
culations of the rate at which alcohol dissipates depend on
various individual characteristics (such as weight, gender,
and alcohol tolerance) and the circumstances in which the
alcohol was consumed.” (citing Stripp, Forensic and Clinical
Issues in Alcohol Analysis, in Forensic Chemistry Handbook
437-441 (L. Kobilinsky ed 2012))); see also State v. Baucum,
268 Or App 649, 661 n 12, 343 P3d 235 (2015), rev den, 357 Or
550 (2015) (explaining that other studies show that experts
use a range of elimination rates from 0.010 to 0.025 percent
per hour (citing Alan Wayne Jones, Evidence-based survey of
the elimination rates of ethanol from blood with applications
in forensic casework, 200 Forensic Science International 1,
14 (2010))).
In addition, the scientific evidence discussed in those
cases reveals that extrapolating to a blood alcohol concen-
tration in any particular case is further complicated by vari-
ations in the time it can take for consumed alcohol to be
absorbed, and BAC to rise to peak level, before beginning to
dissipate. See Eumana-Moranchel, 352 Or at 9 (describing
Cite as 365 Or 724 (2019) 741
expert as testifying “that 80 percent of consumed alcohol
enters the blood within five to 10 minutes, and 100 percent
enters the blood within 30 to 60 minutes”); Baucum, 268
Or App at 662 n 14 (noting that “[a]rticles on retrograde
extrapolation indicate that some studies show individuals
reach peak BAC between forty-five and seventy-five minutes
after the last drink was consumed, and other studies show
that peak BAC is reached in as few as fifteen minutes and
as long as three hours” (citing Justin Noval and Edward
J. Imwinkelried, Jr., Retrograde Extrapolation of Blood
Alcohol Concentration, 50 No. 1 Crim. Law Bulletin ART
7 (WestlawNext at 10) (2014)); A.W. Jones. K.A. Jonsson, A.
Neri, Peak Blood-Ethanol Concentration and the Time of Its
Occurrence After Rapid Drinking on an Empty Stomach, 36
Journal of Forensic Sciences 376, 381 (1991) (concluding that
the time for an individual to reach peak BAC depends on
variables including, “drinking pattern, the type of beverage
consumed, the fed or fasted state, the nature (liquid or solid)
and composition of foodstuff in the stomach, the anatomy
of the gastrointestinal canal, and the mental state of the”
individual); see also McCormick On Evidence § 205 (7th ed)
(cautioning that “one cannot assume that BAC inevitably is
higher at the time of an accident than it is afterwards, for
the concentration rises after drinking, then drops”).
Our discussion of the reviews of scientific studies is
not an endorsement of the accuracy of any particular study.
Rather, we discuss the cited authorities to emphasize the
uniformity with which they describe the process of using
a later test to identify earlier BAC levels as a process that
is far more complex than simply applying the general rule
that blood alcohol dissipates over time. The state’s strongest
response is a citation to one study of retrograde extrapolation
to measure BAC for 161 drivers who had been given a breath
test at the time of the stop and a second test up to two hours
later. Rod G. Gullberg and Anthony J. McElroy, Comparing
Roadside with Subsequent Breath Alcohol Analyses and
Their Relevance to the Issue of Retrograde Extrapolation,
57 Forensic Science International 193 (1992). Based on a
review of that data, the authors emphasized that “when ret-
rograde extrapolation is performed, a range of values should
be reported with the lower limit being the results of actual
742 State v. Hedgpeth
evidentiary analyses,” and they concluded that earlier val-
ues calculated through that method “appear to be very good
approximations and certainly not overestimations” of BAC
at the point of driving. Id. at 200. For purposes of the pres-
ent analysis, however, the significance of the Gullberg arti-
cle is that the technical nature of the process that the study
recommends for using later tests to estimate an earlier
BAC level confirms that the process requires more than just
application of “common knowledge” that alcohol generally
dissipates over time.
Indeed, the limitations of the bare knowledge that
blood alcohol dissipates is so commonly recognized that
courts in a number of jurisdictions prevent the state from
using even an expert’s opinion to prove that a later blood
alcohol test proves a person’s blood alcohol concentration at
the time of driving unless there is a factual basis for infer-
ring that the defendant had reached peak absorption at
the time of the stop. See, e.g., State v. Trujillo, 271 Or App
785, 792 n 9, 353 P3d 609, 614 (2015), rev den, 358 Or 146(2015) (noting that “some jurisdictions require an expert
to demonstrate knowledge of whether the defendant’s body
was absorbing or eliminating alcohol at the time of a blood-
alcohol test, sufficiently consider the eating and drinking
history of a defendant in establishing peak absorption, or
demonstrate where on a BAC curve a defendant’s BAC falls,
in order for retrograde extrapolation evidence to be deemed
reliable”); State v. Babich, 797 SE2d 359, 363-64 (NC Ct App
2017) (relying on what it described as view of the “majority”
of courts to consider the issue to hold that expert opinion
purporting to extrapolate defendant’s BAC at time of driv-
ing from BAC test results obtained 1 hour and 45 minutes
later should have been excluded as unhelpful because expert
conceded that mathematical model was accurate only if the
driver had already reached peak absorption by the time of
the stop and because no evidence supported that assump-
tion); see also State v. Eighth Judicial Dist. Court, 127 Nev
927, 937, 267 P3d 777, 783 (2011) (holding that trial court
did not err in concluding that probative value of expert’s
opinion purporting to extrapolate BAC at the time of driv-
ing from blood draw more than two hours after the accident
was substantially outweighed by danger of unfair prejudice
Cite as 365 Or 724 (2019) 743
because opinion was “insufficiently tethered to individual
factors necessary to achieve a reliable calculation”).12
We have not previously addressed whether we agree
with those limits on the state’s ability to rely on an expert’s
extrapolation of BAC from a later measurement, and we do
not address that issue here. But the complexity inherent in
such extrapolations even when undertaken by experts per-
suades us that a lay factfinder’s “common knowledge” that
blood alcohol dissipates over time cannot supply the only
basis for a reasonable inference that a BAC of .09 percent,
measured two hours after driving and without consumption
in the interim, establishes that the defendant’s BAC was at
least .08 percent at the time of driving. We emphasize: There
was no evidence of when or how much alcohol defendant had
consumed before he was stopped; there is no evidence of why
the officer who stopped defendant for riding a motorcycle
without a helmet arrested defendant for DUII; and there
is no evidence that defendant exhibited any signs of intox-
ication either before or after the stop.13 And, of course, as
the Court of Appeals observed, there was no evidence about
alcohol absorption and dissipation rates, although we do not
suggest that such evidence is necessary.
The sole question before us is whether that extremely
limited record was sufficient to survive a motion for judg-
ment of acquittal. We conclude that it was not. Viewed in
the light most favorable to the state, there must still be some
12
Although this court in Eumana-Moranchel held that the evidence of retro-
grade extrapolation was not categorically inadmissible in a prosecution for DUII
based on “chemical analysis of the breath or blood,” this court was not asked to
consider and did not address other potential challenges to admissibility of that
expert testimony. 352 Or 1.
13
The state suggests that the evidence of defendant’s arrest for DUII pro-
vides some additional basis for an inference that his blood alcohol concentration
exceeded the legal limit at the time of driving. But the state offered no evidence
of why the officer believed that the stop and arrest were justified. The state cites
no authority for its proposition that the arrest itself is probative of anything other
than the fact that it occurred, and we reject the state’s suggestion that a fact-
finder can draw an inference of guilt from the bare fact that an officer stopped or
arrested defendant for a crime. See, e.g., Taylor v. Kentucky, 436 US 478, 485, 98
S Ct 1930, 56 L Ed 2d 468 (1978) (emphasizing that, as a matter of due process,
“one accused of a crime is entitled to have his guilt or innocence determined
solely on the basis of the evidence introduced at trial, and not on grounds of
official suspicion, indictment, continued custody, or other circumstances not
adduced as proof at trial”).
744 State v. Hedgpeth
evidence to permit an inference that defendant drove with a
blood alcohol level of at least .08 percent. The dissent would
prefer a rule under which the state makes out a prima facie
case of the crime of driving under the influence of intoxicants
with nothing more than evidence that the defendant had a
BAC above the legal limit two hours after driving (without
alcohol consumption in the interim). As the state points out,
other states have adopted DUII statutes that capture the
policy reflected by such a rule of proof.14 But Oregon has
not. Whatever the practical advantages of such a policy may
be, deciding whether to adopt that policy is a matter for the
legislature.
Here, the only evidence was that defendant’s blood
alcohol level was over the legal limit when measured almost
two hours after he drove, and that he had consumed no alco-
hol in the interim. In the absence of any other evidence, the
jury’s common knowledge of the generic (and incomplete)
proposition that alcohol dissipates from the blood over time
is not sufficient to constitute the “[s]omething more” that—
as we said in Eumana-Moranchel—is necessary for a non-
speculative connection between the BAC test results and
defendant’s blood alcohol concentration when he was driving
approximately two hours earlier. See 352 Or at 9.
III. CONCLUSION
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to that court for further proceedings.
BALMER, J., dissenting.
Defendant was lawfully stopped for driving his
motorcycle without a helmet. The officer who stopped him
developed probable cause (which defendant does not dispute)
to believe that defendant was driving under the influence
of intoxicants. A breath test nearly two hours after the
initial stop (during which time defendant had consumed
14
See, e.g., Colo Rev Stat § 42-4-1301(2)(a) (“A person who drives a motor
vehicle when the person’s BAC is 0.08 or more at the time of driving or within
two hours after driving commits DUI per se.”); Wash Rev Code § 46.61.502(1)(a)
(defining per se DUII as having a BAC of .08 or higher “within two hours after
driving”).
Cite as 365 Or 724 (2019) 745
no alcohol) found a blood alcohol content (BAC) of .09 per-
cent. The majority concludes that that evidence, presented
through the testimony of the arresting officer, was insuffi-
cient to support a conviction. For that reason, the majority
concludes, the trial court erred as a matter of law in denying
defendant’s motion for a judgment of acquittal. I disagree,
and I fear that the majority opinion may lead to serious and
unnecessary impediments to the use of BAC evidence in
future DUII cases. I respectfully dissent.
I agree generally with the thoughtful dissent in the
Court of Appeals. State v. Hedgpeth, 290 Or App 399, 407,
415 P3d 1080 (2018) (Powers, J., dissenting). I direct the
reader to that dissent, including its discussion of this court’s
prior cases, which strongly, if sometimes in dicta, point in
the opposite direction of the majority’s articulation of how
courts should draw the line between reasonable (and there-
fore permissible) inferences that a factfinder may draw from
measured BAC levels and impermissible “speculation.”
I add the following thoughts to the analysis set out
in the dissent in the Court of Appeals. First, although the
majority sets out the standards of review correctly, it is dif-
ficult for me to square the facts in this case with the major-
ity’s application of those standards. A motion for judgment
of acquittal must be denied if, viewing all the evidence in
the light most favorable to the state, “any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. King, 307 Or 332, 339,
768 P2d 391 (1989) (emphases added). Here, the evidence
above, including the testimony of the arresting officer—and
the reasonable inferences that the trial court could have
drawn from that evidence—seems to me to meet that stan-
dard. Moreover, when the trial court’s denial of a motion for
a judgment of acquittal is reviewed by an appellate court, we
are to accept all “reasonable inferences and reasonable cred-
ibility choices” that the finder of fact could have made. State
v. Walters, 311 Or 80, 82-83, 804 P2d 1164, cert den, 501 US
1209 (1991). Here, the trial court necessarily inferred from
the evidence presented at trial that defendant’s BAC at the
time he was driving was at or over .08 percent. Focusing
on that standard of appellate review—viewing the evi-
dence in the light most favorable to the state and giving the
746 State v. Hedgpeth
factfinder the deference to which he was entitled, including
to draw reasonable inferences from the evidence—I would
conclude that the trial court did not err in denying defen-
dant’s motion for judgment of acquittal.
On the merits, this case turns on the elusive line
between permissible inferences and impermissible specula-
tion. The majority importantly—and correctly—rejects the
suggestion in the Court of Appeals’ majority opinion that a
factfinder cannot draw a conclusion from facts unless that
conclusion follows as a result of “probability and logic.” 290
Or App at 406. The Court of Appeals majority seemed to
view inductive logic as an invalid means of reaching rational
conclusions, when that plainly is not correct. The majority
instead reaffirms our cases holding that we defer to the fact-
finder whenever “the evidence may give rise to multiple rea-
sonable inferences.” 365 Or at 732.
But I part ways with the majority when it concludes
that the trial court’s finding that defendant drove with a
BAC of at least .08 was not a reasonable inference that could
be drawn from the record here. The basis for the majority’s
position is that, although it may be “common knowledge”
that alcohol is absorbed into the blood and then dissipates
over time, the rates of absorption and dissipation, and the
factors that affect those rates in any particular circum-
stance, are not common knowledge. Without that “common
knowledge” to link defendant’s BAC of .09 percent measured
two hours after the last moment at which he could possibly
have consumed alcohol to a BAC of .08 or more at the time
he was driving, the majority holds, defendant should have
been acquitted without a trial.
But although the majority cites various scientific
studies about alcohol absorption and dissipation rates, none
of those support the majority’s conclusion about what is or
is not “common knowledge” among judges or jurors. Nor do
those studies support the majority’s conclusion that it was
unreasonable for the trial judge here to infer from the evi-
dence at trial that defendant was driving with a BAC of at
least .08 percent. Although jurors may not know the details
of absorption and dissipation rates, even occasional drinkers
Cite as 365 Or 724 (2019) 747
and high school students who have taken mandatory heath
education classes, as well as experienced trial court judges,
know that the effects of alcohol increase after consumption
and then decrease. They also know that whether one has
eaten before or while consuming alcohol, the type of food
one has eaten, one’s body weight, and other individual and
circumstantial factors can influence the effects of alcohol
consumption and the duration of those effects. From that
common knowledge, they also can draw a reasonable infer-
ence (even if, as the majority acknowledges, it is not a logi-
cally necessary inference) that a BAC level that is measured
at least two hours after the last consumption of alcohol and
is above the legal limit strongly suggests that the BAC level
also was above the legal limit when defendant was driving
two hours earlier.
What the studies described by the majority do show
is the many variables that can affect the BAC measure-
ment for a particular individual on a particular occasion.
As noted, in my view, members of the public have a layper-
son’s understanding that alcohol is absorbed into the blood
over some time period after drinking and at some point
begins to dissipate, and that a number of factors (only some
of which they may be aware of) can affect those rates. But
the asserted complexity of inferring an earlier BAC while
driving from a later test for DUII purposes, upon which the
majority relies, although not particularly persuasive as to
this defendant, in fact calls into question the entire enter-
prise of measuring BAC levels, whether through a breath
test, as here, or a blood draw that is tested in a labora-
tory. The majority enumerates multiple variables as to the
time that an individual may reach peak BAC (in addition to
the most obvious factors such as the amount of alcohol con-
sumed and when it was last consumed), including weight,
gender, type of beverage, “fed or fasted state,” drinking pat-
terns, alcohol tolerance, “the anatomy of the gastrointesti-
nal canal,” and the individual’s mental state. 365 Or at 740-
41. If all those variables must be known for a post-driving
BAC test to be used to determine whether the driver’s BAC
was at least .08 percent when he or she was driving, one
wonders whether any BAC measurement could ever be the
basis for a DUII conviction.
748 State v. Hedgpeth
Although not mentioned in the majority opinion,
as a practical matter, this decision may well mean that the
state will have to present expert testimony in every case
about absorption and dissipation rates and about at least
some of the factors mentioned above that might affect those
rates.1 The defendant might also want to present expert
testimony, but because the burden is on the state to prove
the facts beyond a reasonable doubt, the defendant, like
defendant here, may simply raise general questions about
the validity of BAC measurement and extrapolation—and
cite today’s decision. But the state’s expert will encounter
a problem. To answer the challenges posed by the majority,
the expert would want information on the variables men-
tioned above, including most importantly, when the driver
last drank (and ate) and what and how much, weight, alco-
hol tolerance, drinking patterns, and so on. Yet that infor-
mation ordinarily will be available only from the driver,
and the driver need not answer any questions that might
incriminate him. See State v. Scott, 343 Or 195, 203, 166
P3d 528 (2007) (interrogation for purposes of right against
self-incrimination extends to police conduct that police
should know is “reasonably likely to elicit an incriminat-
ing response,” which means “any inculpatory or exculpatory
response that the prosecution later may seek to introduce
at trial”); State v. Fish, 321 Or 48, 60, 893 P2d 1023 (1995)
(holding aspects of field sobriety tests that required an indi-
vidual to provide information about residence, date of birth,
beliefs, knowledge, or state of mind unconstitutional as “tes-
timonial” for purposes of Article I, section 12, of the Oregon
Constitution).
The majority fails to mention this obvious problem
(or to explain why it is not a problem) or to provide any
guidance for prosecutors who wish to use BAC evidence.
Of course, testimony about the driver weaving back and
forth, slurring her words, the smell of alcohol, and so on can
always be used to help prove that the driver was driving
1
But the majority seems to throw cold water even on such expert testimony,
at least in circumstances like those present here: “Indeed, * * * the complexity [of
extrapolating from a BAC measurement] can leave even experts unable to reach
a nonspeculative decision on a record as sparse as the record in this case.” 365 Or
at 739.
Cite as 365 Or 724 (2019) 749
under the influence of intoxicants. But the legislature’s
purpose in establishing a more consistent, objective means
of determining when one is driving under the influence
of intoxicants—the BAC test—will have been seriously
undermined.
Perhaps concerned about the potential consequences
of its decision, the majority points to multiple aspects of this
case to suggest that it may be an outlier: The prosecutor chose
to rely only on a per se theory, depending almost entirely on
the BAC evidence; the trial court (erroneously, in the major-
ity’s view) excluded testimony by the state’s expert; the state
failed to cross-assign error to that trial court ruling; no one
asked the arresting officer about defendant’s appearance
or demeanor; the record was “sparse”; the BAC level was
only slightly above the legal limit of .08 percent.2 Perhaps
in the next case, the state will not choose to pursue only a
per se theory (although the legislature presumably estab-
lished the per se test in order to simplify DUII cases); per-
haps the trial judge will allow the state’s expert to testify,
despite the majority’s previously noted caution (or if not, the
state will appeal the erroneous ruling); perhaps the officer
will offer additional testimony about the appearance, bad
driving, demeanor, or smell of alcohol on the driver’s breath
to support the charge. Perhaps.
But I am concerned that the majority’s stark
conclusion—that it is not permissible for a factfinder to
infer that a driver whose BAC level was .09 percent two
hours after being arrested for DUII had a BAC of level of
at least .08 percent when he was driving—will unneces-
sarily hinder the state’s efforts to deter and punish drunk
driving.
I respectfully dissent.
Baldwin, S. J., joins in this dissent.
2
Query at what post-driving BAC level the majority would draw the line and
hold that an inference of .08 percent or more at the time of driving would be “rea-
sonable.” Query, too, how the majority would approach a measured BAC of .09
percent 20 minutes after driving, or four hours after driving. Given the appar-
ently daunting complexity of the task, the viability of the entire BAC testing
protocol seems potentially at risk.