Clackamas County Justice Court v. Chan ( 2023 )

556
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted May 23, affirmed June 22, 2023
CLACKAMAS COUNTY JUSTICE COURT,
Plaintiff-Respondent,
v.
Jeoffrey CHAN,
Defendant-Appellant.
Clackamas County Circuit Court
21VI49384; A177167
Susie L. Norby, Judge.
Blake Doré argued the cause for appellant. Also on the
brief was Doré Law Firm, LLC.
Robert C. Hansler, Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jon Zunkel-deCoursey, Assistant Attorney
General.
Before Tookey, Presiding Judge, and Kamins, Judge, and
Hadlock, Judge pro tempore.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 326 Or App 556 (2023) 557
KAMINS, J.
Defendant appeals from a judgment finding him
guilty of the offense of violating a speed limit, ORS 811.111.
He raises two assignments of error, both challenging dif-
ferent aspects of the trial court’s decision to admit into
evidence the radar measurement of his speed. In the first
assignment of error, he contends that the trial court erred
in determining that the officer was an expert under OEC
702 in “identifying speeds.” The second assignment of error
asserts that the state failed to lay an adequate foundation
under OEC 901 to admit the radar measurement because of
a lack of evidence concerning the radar equipment’s calibra-
tion. We affirm.
We reject defendant’s first assignment of error,
because the officer did not need to be an expert in order to
read the radar measurement into evidence. If a technique
is scientifically valid, the proponent “need not introduce
expert foundational testimony to demonstrate scientific
validity.” State v. O’Key, 321 Or 285, 293 n 8, 899 P2d 663(1995); cf. State v. Branch, 243 Or App 309, 320, 259 P3d
103, rev den, 351 Or 216 (2011) (holding that lidar evidence
measuring distance was a “clear case” and as such the state
was not required to present foundational evidence as to the
science). Defendant does not challenge the scientific validity
of radar, and thus any contention that the officer needed to
be an expert to testify to the reading of the radar device
must fail.1
As to the second assignment of error, we conclude
that the state laid a sufficient foundation under OEC 901 to
admit the radar measurement into evidence. The officer tes-
tified that he was trained and passed a course in radar, that
he runs checks on the radar device at the beginning and end
of every shift, and that he had performed those checks on
the day he issued the citation in this case. The officer further
testified that he visually estimated defendant’s speed to be
1
Defendant’s argument that using a radar device in an “untested mode” is
not scientifically valid is not a proper challenge to the scientific validity of radar
evidence. See State v. Ray, 318 Or App 683, 689-90, 509 P3d 171, rev den, 370 Or
214 (2022) (weaknesses in a given scientific study, weaknesses in testing method-
ology, and errors in an expert’s analysis do not render scientific evidence invalid).
558 Clackamas County Justice Court v. Chan
80 mph, and that he confirmed that estimation by checking
his radar gun.2 That was legally sufficient evidence under
OEC 901 to permit the radar measurement to be presented
to the factfinder. See State v. H. D. E., 304 Or App 375, 383,
467 P3d 771, rev den, 367 Or 220 (2020) (“[U]nder OEC 901,
legal sufficiency requires only evidence sufficient to support
a finding that the matter in question is what its proponent
claims.” (Citations and internal quotation marks omitted.)).
A lack of additional calibration tests is not enough to raise
“authenticity questions so significant that no reasonable
person could believe the evidence to be authentic.” State v.
Sassarini, 300 Or App 106, 129, 452 P3d 457 (2019).
Affirmed.
2
Defendant’s argument that the officer’s visual estimation of defendant’s
speed should not have been admitted is unpreserved, and we do not consider it.