State v. Ortiz ( 2023 )

134
Submitted October 4, 2022, reversed and remanded April 5, petition for review
allowed July 20, 2023 (371 Or 308)
See later issue Oregon Reports
STATE OF OREGON,
Plaintiff-Respondent,
v.
STEPHANIE ANDREA ORTIZ,
Defendant-Appellant.
Josephine County Circuit Court
20CR23850; A175738
528 P3d 795
Defendant appeals from a judgment of conviction for one count of driving
under the influence of intoxicants (DUII), ORS 813.010(4). On appeal, she asserts
that the trial court plainly erred when it failed to strike testimony by the arrest-
ing officer that field sobriety tests (FSTs) that the officer administered to defen-
dant were scientifically validated. Defendant asserts that the officer’s testimony
was scientific evidence for which the state failed to lay an adequate foundation.
Held: By testifying that FSTs are standardized tests that are designed to mea-
sure impairment and validated through studies, the officer imbued her testimony
with the persuasive authority of science. Following State v. Reid, 312 Or App 540,
492 P3d 728 (2021), which held that a trial court has a sua sponte duty to exclude
clearly scientific testimony regarding FSTs when it is presented without a proper
foundation, the Court of Appeals concluded that the trial court plainly erred in
not excluding the testimony. That error was not harmless. The court exercised its
discretion to correct the error.
Reversed and remanded.
Brandon S. Thueson, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Erica L. Herb, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Reversed and remanded.
Pagán, J., dissenting.
Cite as 325 Or App 134 (2023) 135
SHORR, P. J.
Defendant appeals from a judgment of conviction
for one count of driving under the influence of intoxicants
(DUII), ORS 813.010(4). On appeal, she asserts that the trial
court plainly erred when it failed to strike testimony by the
arresting officer that field sobriety tests (FSTs) that the offi-
cer administered to defendant were scientifically validated
and erred again when it permitted the officer to testify that
defendant’s performance on the FSTs was consistent with
intoxication and not with sobriety. Defendant asserts that
the officer’s testimony was scientific evidence for which the
state failed to lay an adequate foundation. For the reasons
that follow, we reverse and remand.
In reviewing a trial court’s evidentiary ruling, “we
do so in light of the record that was before the court at the
time of the ruling.” State v. Eatinger, 298 Or App 630, 632,
448 P3d 636 (2019). When evaluating whether the erroneous
admission of evidence was harmless, we consider all perti-
nent parts of the record. Id. A complete recitation of those
facts would not benefit the bench, the bar, the public, or the
parties, and thus we provide only a general recitation below.
At trial, the state presented evidence that a con-
cerned citizen called 9-1-1 to report that she had just heard
a vehicle “screech” to a stop, prompting her to look out the
window and observe a white SUV in her neighbor’s driveway
“at an odd angle.” Because of the orientation of the vehicle,
the witness believed it had been traveling in the wrong lane
of traffic before entering the driveway. The witness provided
a detailed description of the driver.
Officer Miguel arrived at the location and approached
defendant, who matched the description of the driver given
by the witness. In speaking to defendant, Miguel “could smell
the odor of an alcoholic beverage coming from her breath”
and noticed that defendant had “watery eyes.” Defendant
also “had cyclical mood cycles [and] would range from being
angry to crying to laughing.” Defendant told Miguel that
she was “a little bit tipsy,” that “she did not believe that she
was safe to drive,” and that she had had “five beers” over the
course of six to seven hours. She denied driving the vehicle.
136 State v. Ortiz
Miguel proceeded to investigate defendant for DUII
and asked her to perform two FSTs: a “walk-and-turn” test
and a “one-leg-stand” test. After noting several “clues” from
defendant’s performance on the FSTs, Miguel arrested defen-
dant for DUII.
Miguel testified at trial, without objection, that the
FSTs are “designed to determine impairment,” nationally
“standardized,” and supported by studies “prov[ing] their
validity.” Miguel then described the tests in detail, includ-
ing the instructions she gave to defendant regarding the
tests and defendant’s subsequent performance on the tests.
Miguel testified that defendant “showed five out of eight
clues” on the walk-and-turn test and “three of four” possible
clues on the one-leg-stand test.
Miguel’s bodycam footage, which showed her inter-
view of defendant and defendant’s performance on the FSTs,
was admitted into evidence and played for the jury. The jury
was also presented with evidence that defendant submitted
to a breath test, which measured her blood alcohol content
(BAC) at .07 percent just over one hour after the officer ini-
tially received the concerned citizen’s call.
In her defense, defendant testified that her husband,
rather than she, had been driving. Defendant admitted that
she had been drinking and that she had told Miguel that
she had not felt safe to drive. Defense counsel argued in clos-
ing, however, that, based on all of the evidence, the jurors
could find defendant not guilty either because they found
that she had not been driving, or, if they found she had been
driving, because they concluded that she had not been under
the influence of intoxicating liquor “to the extent that she
could not safely operate that vehicle.” Among other argu-
ments, defense counsel argued that defendant’s poor perfor-
mance on the FSTs could have been caused by defendant’s
emotional state or embarrassment rather than intoxication.
The jury returned a unanimous guilty verdict. Defen-
dant was convicted of driving under the influence of intoxi-
cants, ORS 813.010(4), and this timely appeal followed. We
review for legal error whether evidence is “scientific,” and, if
so, whether it is admissible. State v. Ohotto, 261 Or App 70,
71, 323 P3d 306 (2014).
Cite as 325 Or App 134 (2023) 137
We begin by considering defendant’s argument that
the trial court plainly erred in not excluding Miguel’s testi-
mony that the FSTs administered to defendant were scien-
tifically validated, and because we conclude that the court
plainly erred in that regard and that exercising our dis-
cretion to correct the error is appropriate, we do not reach
defendant’s other assignment of error.
We agree with the parties that defendant’s assign-
ment of error was unpreserved and thus turn to our estab-
lished plain-error inquiry. Plain-error review involves a
two-step inquiry in which we first determine whether the
error is plain, and second, whether to exercise our discretion
to consider the error. ORAP 5.45; Ailes v. Portland Meadows,
Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). To constitute
plain error, the error must be (1) one of law, (2) obvious, i.e.,
not reasonably in dispute, and (3) “apparent on the record
without requiring the court to choose among competing
inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d
889 (2013).
As the court explained in State v. O’Key, 321 Or 285,
291, 899 P2d 663 (1995), “[e]vidence perceived by lay jurors
to be scientific in nature possesses an unusually high degree
of persuasive power. The function of the court is to ensure
that the persuasive appeal is legitimate.” (Footnote omit-
ted.) Hence, “in the absence of a clear case, a case for judicial
notice, or a case of prima facie legislative recognition,” id. at
293 (footnote omitted), the trial court must assess the scien-
tific validity of proffered scientific evidence by considering
the potential factors outlined in State v. Brown, 297 Or 404,
417, 687 P2d 751 (1984), and O’Key, 321 Or at 299-306. The
proponent of the evidence must lay an adequate foundation
addressing the Brown/O’Key factors. State v. Trujillo, 271 Or
App 785, 791, 353 P3d 609, rev den, 358 Or 146 (2015).
Because the state did not lay such a foundation
here, the questions before us are whether Miguel’s testi-
mony constituted “scientific” evidence and whether the trial
court plainly erred in not sua sponte excluding it as such. We
have previously stated that “[e]vidence qualifies as scien-
tific when it is expressly presented to the jury as scientific,
when it draws its convincing force from scientific principles,
138 State v. Ortiz
or when it would likely be perceived by the jury as imbued
with the persuasive appeal of science.” State v. Reid, 312 Or
App 540, 543, 492 P3d 728 (2021) (internal quotation marks
omitted).
We readily conclude that Miguel’s testimony was
scientific evidence. In Eatinger, we determined that an offi-
cer’s testimony that FSTs are scientifically validated and
“the product of scientific research” was scientific, “because it
purported to draw its convincing force from principles of sci-
ence” rather than the officer’s training and experience. 298
Or App at 631, 642. Similarly in State v. Beltran-Chavez,
286 Or App 590, 614, 400 P3d 927 (2017), we determined
that an officer’s testimony that the defendant “passed” or
“failed” the walk-and-turn and one-leg-stand FSTs was sci-
entific evidence, because “the proposition underlying that
testimony is that the test is able to measure impairment
objectively and that a specific numerical score can prove
that the subject is impaired.”
Here, Miguel testified that the FSTs were “designed
to determine impairment,” nationally “standardized,” and,
perhaps most concerning, supported by studies “prov[ing]
their validity.” That testimony is functionally indistinguish-
able from the evidence considered in Eatinger and Beltran-
Chavez. We thus reject the state’s contention that the evi-
dence at issue was not “plainly scientific.” Because the state
did not attempt to lay an adequate Brown/O’Key foundation,
it would be error for a trial court to admit the above testi-
mony over an appropriate objection.
We appreciate the dissent’s position that Miguel’s
testimony that the FSTs were “designed to determine
impairment” may not, standing alone, constitute scientific
testimony. 325 Or App at 148 (Pagán, J., dissenting). It is
difficult to understand that testimony as meaningfully dif-
ferent than an officer’s testimony that FSTs can be “passed”
or “failed,” which we concluded was scientific testimony in
both Beltran-Chavez and, as discussed further below, Reid.
See Beltran-Chavez, 286 Or App at 614; Reid, 312 Or App
at 543. But we need not decide this case on those words
alone. As noted, in addition to testifying that the FSTs were
“designed to determine impairment,” the officer also testified
Cite as 325 Or App 134 (2023) 139
that the tests were nationally “standardized” and that they
were supported by studies “prov[ing] their validity.” That is
testimony that derives its force from scientific principles—it
presents a jury with the contention that a national standard
has not only been developed, but that studies have deter-
mined that the tests produce scientifically valid evidence of
impairment. All of that testimony together presented the
jury with the impression that the FSTs were derived from,
proved by, or, at a minimum, imbued with the persuasive
appeal of science.1
As noted, defendant did not object to Miguel’s tes-
timony. We therefore turn to whether it was plain error for
the trial court to not recognize the testimony as obviously
scientific testimony lacking a foundation and, accordingly,
sua sponte exclude its admission into evidence.
Based on our recent decision in Reid, we conclude
that that error was plain and that the trial court had a duty
to exclude the evidence. In Reid, an officer testified that the
FSTs are “pass or fail” tests. 312 Or App at 543. The defen-
dant did not object to that testimony. Id. On appeal, the state
conceded “that plain-error review and reversal would be
appropriate.” Id. at 541. We accepted the state’s concession.
Id. Although our plain-error analysis was not extensive, we
highlighted that the officer’s pass/fail testimony was nearly
identical to the testimony in Beltran-Chavez. We then con-
cluded, based on Beltran-Chavez, that it was “obvious [and]
not reasonably in dispute” that it was legal error to admit
that scientific testimony without a proper foundation. Id. at
543-44.
The necessary implication from Reid is that a trial
court has a sua sponte duty to exclude clearly scientific testi-
mony regarding FSTs when it is presented without a proper
foundation. As discussed above, the testimony at issue here,
which included testimony that the FSTs were supported by
studies proving their validity, was similarly—if not more
obviously—scientific testimony than that at issue in Reid.
1
Of course, jurors may be presented with scientific evidence. As we note
above, however, due to the inherently persuasive appeal of evidence that is per-
ceived by jurors as scientific, the court must first assess the scientific validity of
such evidence before permitting its admission. O’Key, 321 Or at 291-92.
140 State v. Ortiz
By testifying that FSTs are standardized tests that are
designed to measure impairment and validated through
studies, Miguel imbued her testimony with the persuasive
authority of science.
The dissent contends that we are creating new law
through this decision and questions why we would create
a new sua sponte duty for trial courts to strike such tes-
timony.2 325 Or App at 151-53 (Pagán, J., dissenting).
Respectfully, our decision is controlled by Reid, which held
that it was plain error for a trial court to admit scientific
testimony that FSTs are pass or fail tests, even when, as in
all plain error cases, the party opposing admission did not
object. By concluding that there was plain error in those cir-
cumstances, Reid necessarily requires trial courts to strike
such testimony.
Further, as we did in Reid, we also exercise our dis-
cretion to correct the error. Id. at 544 (stating that “we per-
ceive no reasons why our exercise of discretion to correct the
error is not appropriate”). We first note that we do not agree
with the state’s contention that there is little likelihood that
Miguel’s erroneously admitted testimony affected the ver-
dict.3 See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003)
(describing harmless-error inquiry). Here, defendant’s BAC
was under the per se limit when tested approximately one
hour after the initial call to the police. The state needed
to prove that defendant drove while her “physical or men-
tal faculties were adversely affected to a noticeable or per-
ceptible degree.” State v. Miller, 265 Or App 442, 445, 335
P3d 355 (2014). Thus, the state needed to prove both that
defendant had been the driver of the vehicle and that she
2
Although we respectfully disagree with the dissent on the merits, we appre-
ciate that it may be appropriate to probe whether a trial court should have a sua
sponte duty to strike clearly scientific testimony. There are arguments pointing
in each direction. Our decision in Reid did not directly confront those arguments.
It may be that the Supreme Court ultimately addresses the issue. In the mean-
time, however, Reid constitutes controlling case law for our court, and in the
absence of argument from the parties that Reid was wrongly decided, the princi-
ples of stare decisis require that we follow that controlling law.
3
The state contends that any error was harmless, and that we should affirm
on that basis. The state also separately contends that, because any error was
harmless, we should not exercise our discretion correct it. As discussed below, we
reject both contentions.
Cite as 325 Or App 134 (2023) 141
had been adversely affected while doing so. Defendant con-
tested both elements at trial. And, although the state is cor-
rect that other evidence in the record could have supported
a jury finding that defendant was impaired at the time of
the incident—including, notably, defendant’s own admission
that she did not believe she was safe to drive—that alone
is insufficient to render the court’s error harmless. As in
Eatinger, Miguel’s testimony that the FSTs were scientifi-
cally validated “presented the jury with evidence that had
persuasive value apart from [other evidence] that defendant
was impaired.” 298 Or App at 646. And, as we concluded in
Beltran-Chavez, Miguel’s testimony “presented the jury with
a separate, ostensibly objective, reason to believe that defen-
dant was under the influence.” 286 Or App at 618 (empha-
sis added). We further observe that the state emphasized
and relied on the FST results in its closing argument. That
emphasis leaves us unable to conclude that the testimony
bore “no relationship to the jury’s determination of its ver-
dict” or was “duplicative or unhelpful to its deliberations.”
Davis, 336 Or at 32-33.
The dissent notes some of the additional persuasive
evidence that may have nevertheless caused the jury to con-
vict in this case, and suggests that, even assuming there
was error, any is harmless. 325 Or App at 150-51 (Pagán, J.,
dissenting). But our job is not to reweigh the evidence or
decide whether that other evidence was substantial when
balanced against the improperly admitted evidence. We
have rejected similar arguments in the past:
“[T]he state’s request, which calls for us to consider the
‘overwhelming’ evidence of guilt and balance it against the
probative value and credibility of defendant’s proffered tes-
timony, invites us to reweigh the evidence. That is not our
task when we conduct a harmless-error analysis. In con-
ducting that analysis, we focus on the possible influence of
the error on the verdict rendered, not whether this court,
sitting as a factfinder, would regard the evidence of guilt as
substantial and compelling.”
State v. Zaldana-Mendoza, 299 Or App 590, 613, 450 P3d
983 (2019) (internal quotation marks omitted). We focus
here on whether the improperly admitted scientific evidence
had little likelihood of affecting the verdict. As noted above,
142 State v. Ortiz
due to the inherently persuasive effect of scientific evidence
and the prosecution’s focus on the FST results in its closing
argument, we cannot say that the testimony at issue had
little likelihood of affecting the verdict.4
Finally, we are not persuaded that exercising our
discretion in this case is inappropriate because of defen-
dant’s failure to object to Miguel’s scientific testimony.
Although the state posits that it could have laid an adequate
foundation had defense counsel appropriately objected, we
are not so sure—Miguel was a police officer who did not
testify to possessing any special scientific knowledge and
who referenced her police academy training, “wet lab” expe-
rience, and prior DUII investigations when asked to detail
her training regarding FSTs. Thus, it is difficult to see how
the state could have laid an adequate Brown/O’Key founda-
tion for Miguel to testify as a scientific expert had defense
counsel objected to the evidence. Cf. State v. Garcia, 320
Or App 123, 138, 512 P3d 839, rev den, 370 Or 602 (2022)
(“[n]othing suggests that, if defendant had objected, the
state would have been unable to successfully address the
objection and secure admission of the same testimony”).
In conclusion, the trial court plainly erred in not
excluding Miguel’s testimony that the FSTs were “designed
to determine impairment,” nationally “standardized,” and
supported by studies “prov[ing] their validity.” That error
was not harmless. We also exercise our discretion to cor-
rect that error. Because we reverse and remand for a new
trial, we need not address defendant’s contention that the
trial court also erred in permitting Miguel to testify that
defendant’s performance on the FSTs was consistent with
other indicators of impairment and inconsistent with how
a sober person would perform. However, because the issue
could occur again on remand, we reiterate, as we have said
in other cases, that an officer may testify to their opinion
regarding a defendant’s intoxication without establishing a
4
We also note that we see this as a closer case than the dissent. Of course,
the jury heard significant evidence that could lead it to conclude that defendant
drove while impaired. But, as noted, the jury also heard evidence that defen-
dant’s breath test indicated a .07 percent BAC. That is below the per se legal limit
for DUII, ORS 813.010(1)(a), and the video evidence of defendant’s impairment is
also not overwhelming.
Cite as 325 Or App 134 (2023) 143
scientific foundation, even if that opinion is in part based on
scientific evidence, if the opinion “draws its force from [the
officer’s] training and experience” and “does not imply that
it is based on science.” Beltran-Chavez, 286 Or App at 603-
04; State v. Rambo, 250 Or App 186, 195, 279 P3d 361 (2012),
rev den, 353 Or 203 (2013).
Reversed and remanded.
PAGÁN, J, dissenting.
“Under our adversary system, once a defendant
has the assistance of counsel the vast array of trial deci-
sions, strategic and tactical, which must be made before and
during trial rests with the accused and his attorney. Any
other approach would rewrite the duties of trial judges and
counsel in our legal system.” Estelle v. Williams, 425 US 501,
512, 96 S Ct 1691, 48 L Ed 126 (1976). When an appellate
court exercises its discretion to correct plain error regard-
ing testimony or evidence, it communicates to trial judges
that they should be ready to intervene sua sponte on a reg-
ular basis during trials, regardless of the potential tactical
decisions the parties have made for themselves. While there
may be circumstances that warrant such a transformation
from jurist to advocate—such as unequivocal vouching—
it behooves us to restrict the expansion of such a doctrine
beyond what is absolutely necessary to ensure that litigants
enjoy fair trials. I dissent from the majority because I dis-
agree that any error occurred below, and if there was error,
it was harmless. But I also dissent to the extent the majority
is comfortable with expanding the doctrine of requiring sua
sponte striking of testimony beyond unequivocal vouching.
Relying on the plain-error doctrine, the majority
reverses defendant’s conviction, after a jury trial, for driv-
ing while under the influence of intoxicants (DUII), ORS
813.010(4). But the error was not plain, and we should not
exercise our discretion to consider it. By doing so, the major-
ity creates a new rule for trial judges, imposing a new sua
sponte duty to strike testimony about the purpose of field
sobriety tests (FSTs), whether they are nationally stan-
dardized, and why police officers use them, despite allow-
ing officers to then testify about the tests and how the offi-
cers utilized them. That new rule is confusing, inherently
144 State v. Ortiz
contradictory, exceedingly difficult to enforce, and I dis-
agree with the majority’s suggestion that our prior cases
compel us to adopt it. In addition, the claimed error, if any,
was harmless.
The state charged defendant with the misdemeanor
offense of DUII, ORS 813.010(4). At defendant’s jury trial,
the state called two witnesses: the person who made a 9-1-1
call, and the police officer who responded. The first witness
testified that she made the call because she heard a vehicle
screech to a halt, and the witness saw a man pull a woman
out of the driver’s side of the vehicle.
Officer Miguel, a police officer with the City of
Grants Pass, responded to the 9-1-1 call. Miguel located “a
male, female and juvenile matching the exact description
provided” by the witness who made the 9-1-1 call. Miguel
made an in-court identification of defendant as the woman
with whom she spoke. Miguel was initially investigating
the incident as one of domestic violence. But when Miguel
learned that defendant may have been driving, Miguel “con-
tinued forward with a DUI investigation.”
Miguel “could smell the odor of an alcoholic bever-
age” coming from defendant’s breath, and defendant had
“watery eyes.” Miguel testified regarding other “indicators
of impairment,” including that defendant “was emotional,
she had cyclical mood cycles * * * rang[ing] from being angry
to crying to laughing, [and] she was quickly annoyed with
certain questions.” Miguel testified that defendant “had
even offered to me that she was feeling a little bit tipsy.”
Defendant told Miguel that she did not believe that she was
safe to drive. Defendant said that she drank five beers that
day. When asked by the officer to rate her intoxication on a
scale of one to 10, with one being completely sober, and 10
being falling down drunk, defendant rated herself as a four.
Defendant told the officer that “she was not wearing under-
wear because she had previously urinated herself during
the day.”
Regarding FSTs, the prosecutor asked the officer
whether she had “received any specific training in admin-
istering” them. Miguel responded that she had. The pros-
ecutor asked for an explanation of “the purposes” of FSTs.
Cite as 325 Or App 134 (2023) 145
Miguel responded, “They are divided attention tests. They
are designed to determine impairment.” Miguel required
defendant to perform “the walk-and-turn test and the one-
leg stand.” When asked whether “those tests [are] used by
law enforcement around the country,” Miguel responded,
“Yes. Those are standardized tests.” The prosecutor asked,
“Why are those tests used around the country?” Miguel
responded, “Like I said, they are standardized. There have
been studies conducted to prove their validity. There—it’s
a national standard, so it’s not just something that I made
up or anybody in my department made up. It is a national
standardized test. It is conducted the same way, it has the
same set of instructions, same set of rules for each person
that performs that nationwide.”
Regarding her training, Miguel explained that, in
the basic academy, she took a course called, “Standardized
Field Sobriety Tests.” Miguel participated in a “wet lab,”
which involved performing the tests on volunteers who had
been drinking. Miguel passed the training, and she had
experience conducting several DUII investigations for drugs
and alcohol.
Miguel described the walk-and-turn test, and when
defendant performed the test, Miguel observed “five out of
eight clues” of impairment. Shortly thereafter the following
exchange occurred:
“Q And you had already said, but let’s go over it again—
how many clues did the Defendant display?
“A Five out of eight.
“Q Was that consistent with her statements that she was
unsafe to drive?
“A Yes.
“Q Was that consistent with the odor of alcohol you
smelled?
“A Yes.
“Q Was that consistent with her watery eyes?
“A Yes.
“Q Was that consistent with her mood swings?
146 State v. Ortiz
“A Yes.
“Q Was that consistent with the erratic driving you
learned about?
“A Yes.
“Q Please compare for the jury what you observed the
Defendant do with what you would expect a sober person
to do.
“A The test, as it’s explained—
“[DEFENSE COUNSEL]: Your Honor, I’m going to object
as to foundation and speculation. I don’t think that—
“[PROSECUTOR]: It’s (indiscernible) training and expe-
rience and the opinion she formed in the course of her
duties.
“THE COURT: Yeah. Overruled.
“THE WITNESS: I can explain? Can you say the ques-
tion one more time?
“Q Please compare for the jury what you observed the
Defendant do with what you would expect a sober person
to do.
“A So, I would expect a sober person who has never seen
those tests before, never performed them in their life, I
would definitely not expect them to demonstrate five out
of eight clues. These tests are not difficult. They are very
basic. I give the instructions very clearly. I repeat multi-
ple key points of the instructions, multiple times. So, if
there’s—I give the person [an] opportunity to ask questions.
I confirm with them that they understand the test before
they begin it. So, if they have any questions about what
they saw or what I demonstrated, or if they weren’t listen-
ing, got distracted by something, they have the opportunity
right there to ask me before they perform the test. So, there
shouldn’t really be a reason why there’s that many indica-
tors of impairment if you’re completely sober.”
Next, the officer described the one-leg stand test
and her training and experience administering it. On
that test, defendant exhibited three out of four clues. After
performing the two tests, Miguel placed defendant under
arrest. The jury watched excerpts from the body camera
footage of Miguel’s encounter with defendant, including
Cite as 325 Or App 134 (2023) 147
video of defendant’s performance on the two FSTs. On the
video, when asked whether she thought she was safe to
drive, defendant responded, “Not right now. Fuck no.”
Defendant testified at her trial. She explained that
she drank some beers at an Easter party at her sister’s
house. Defendant denied driving the vehicle after drinking
alcohol that day. Defendant stated that her husband drove
the vehicle. After closing arguments and jury instructions,
the jury returned a verdict of guilty on the charge of DUII.
Defendant appeals.
On appeal, defendant raises two assignments of
error. First, she argues that the trial court improperly
admitted the officer’s testimony that “five out of eight clues
on the walk-and-turn test was consistent with being unsafe
to drive, driving erratically, exhibiting mood swings, having
an odor of alcohol and watery eyes, and was inconsistent
with being sober.” Second, defendant argues that the trial
court improperly admitted the officer’s testimony that “the
FSTs were scientifically validated.”
The majority focuses on the second assignment of
error. 325 Or App at 137. Defense counsel did not object to
Miguel’s testimony that FSTs are “designed to determine
impairment,” nationally “standardized,” and that “[t]here
have been studies conducted to prove their validity.” As
a result, the majority conducts a plain-error review. Id.
Relying on State v. Eatinger, 298 Or App 630, 448 P3d 636
(2019), and State v. Beltran-Chavez, 286 Or App 590, 400
P3d 927 (2017), the majority determines that Miguel’s tes-
timony was scientific evidence. 325 Or App at 138. Then,
relying on State v. Reid, 312 Or App 540, 492 P3d 728 (2021),
the majority concludes that the trial court had a duty to sua
sponte exclude the testimony. 325 Or App at 139-40.
I respectfully disagree. “For an error to be plain
error, it must be an error of law, obvious and not reasonably
in dispute, and apparent on the record without requiring
the court to choose among competing inferences.” State v.
Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). Here, it is
not obvious that the officer’s statements about FSTs were
scientific, and it is reasonable to dispute that contention. In
Eatinger, 298 Or App at 642, we concluded that an officer’s
148 State v. Ortiz
statements were scientific evidence because he “expressly
testified as to the scientific validation of the clues he had
observed * * *; he also expressly adopted the prosecutor’s
statement that the FSTs were the product of scientific
research.” (Emphasis in original; internal quotation marks
omitted.)
But here, the testimony is less clear. Miguel’s state-
ment that FSTs are “designed to determine impairment”
does not appear to be scientific at all, and it is reasonable
to construe it as a straightforward description of the pur-
pose of FSTs. Miguel testified regarding the walk-and-turn
test and the one-leg-stand test. In State v. O’Key, 321 Or
285, 297, 899 P2d 663 (1995), the Supreme Court indicated
that testimony regarding those two tests is not scientific
because, unlike the horizontal gaze nystagmus test, they
“obtain their legitimacy from effects of intoxication based
on propositions of common knowledge.”
Admittedly, the officer’s statements that those two
tests are nationally “standardized” and that “[t]here have
been studies conducted to prove their validity” come closer
to crossing the line between expert testimony based on
training and experience and expert testimony that is scien-
tific. But it is not obvious or beyond reasonable dispute that
they do so. In Beltran-Chavez, 286 Or App at 616, we held
that testimony that the defendant “passed” or “failed” the
FSTs was scientific evidence that was inadmissible absent a
sufficient foundation. “When an officer testifies that a defen-
dant ‘failed’ the walk-and-turn test or the one-leg-stand test,
that testimony relies on an external scoring rubric to prove
that the defendant was objectively, measurably impaired.
Indeed, the state acknowledged as much by arguing, in
response to defendant’s pretrial motion, that FSTs are stan-
dardized tests.” Id. at 611. Similarly, in Reid, 312 Or App at
543, the officer’s testimony was objectionable because the
officer described the end result of the test as a pass or fail.
But here, unlike in Beltran-Chavez or Reid, the offi-
cer did not testify that defendant failed the two FSTs. Miguel
did refer to the tests as nationally “standardized,” but, by
itself, it is not clear that statement is scientific. Miguel’s use
of the word “standardized” was likely something she learned
Cite as 325 Or App 134 (2023) 149
in her training because she stated that her training course
was called “Standardized Field Sobriety Tests.” Miguel also
explained that “it’s a national standard, so it’s not just some-
thing that I made up or anybody in my department made up.
It is a national standardized test. It is conducted the same
way, it has the same set of instructions, same set of rules for
each person that performs that nationwide.” So understood,
“standardized” does not necessarily imply that the test is
grounded in principles of science; instead, it could be under-
stood to mean that the officer was trained to use a test for
impairment that is the same test used by law enforcement
throughout the United States. See Eatinger, 298 Or App at
636 (referring to the “NHTSA’s ‘standardized field sobriety
test curriculum’ ”).
Miguel’s reference to studies conducted to prove the
validity of FSTs comes closer to expert testimony based on
science, but, unlike the officer in Eatinger, Miguel did not
refer to FSTs as “scientifically validated” or as “the product
of scientific research.” 298 Or App at 642. Thus, it is less
clear that the jury would have viewed Miguel’s testimony
as drawing “its convincing force from some principle of sci-
ence, mathematics and the like.” Id. at 640 (quotation marks
omitted). The key point here is that “the line between expert
testimony based on training and experience and expert
testimony that is scientific can often be difficult to draw.”
Id. at 641. The instant case is a good example of that diffi-
culty. Because the error is not obvious, it is not plain. See
State v. Serrano, 355 Or 172, 182, 324 P3d 1274 (2014), cert
den, 576 US 1037 (2015) (rejecting plain-error argument
because “defendant has not demonstrated the obviousness
of the posited unpreserved error”).
Even if the error was plain, we should not exercise
our discretion to consider it. A decision to consider plain
error should be made with the “utmost caution” because it
undercuts the policies served by the preservation doctrine
and OEC 103(1)(a). Ailes v. Portland Meadows, Inc., 312 Or
376, 382, 823 P2d 956 (1991). “It is only in rare and excep-
tional cases that this court will notice an alleged error
where no ruling has been sought from the trial judge.” State
v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006) (internal
quotation marks omitted). The determination of whether to
150 State v. Ortiz
exercise our discretion to address a plain error involves the
consideration of a variety of factors, including “the compet-
ing interests of the parties; the nature of the case; the grav-
ity of the error; the ends of justice in the particular case;
how the error came to the court’s attention; and whether
the policies behind the general rule requiring preservation
of error have been served in the case in another way, i.e.,
whether the trial court was, in some manner, presented
with both sides of the issue and given an opportunity to cor-
rect any error.” Ailes, 312 Or at 382 n 6.
The majority concludes that there was a plain error
and it exercises its discretion to consider the error because
it was not harmless. 325 Or App at 139-40. According to the
majority, “Miguel’s testimony that the FSTs were scientifi-
cally validated ‘presented the jury with evidence that had
persuasive value apart from [other evidence] that defendant
was impaired.’ ” Id. at 140-41.
Respectfully, the majority downplays the significant
evidence of defendant’s impairment. Miguel “could smell
the odor of an alcoholic beverage” coming from defendant’s
breath, and defendant had “watery eyes.” Defendant was emo-
tional and had “cyclical mood cycles.” Defendant told Miguel
that she was feeling a little bit tipsy, and she did not believe
that she was safe to drive. The jury watched video from
Miguel’s body camera, and, when Miguel asked defendant
whether she thought she was safe to drive, she responded,
“Not right now. Fuck no.” Defendant had five beers that day.
When asked to rate her intoxication on a scale of one to 10,
defendant rated herself as a four. Defendant told the officer
that “she was not wearing underwear because she had pre-
viously urinated herself during the day.” The jury watched
video of defendant’s performance on the walk-and-turn test
and the one-leg-stand test. Having done so, the jurors could
assess for themselves whether defendant exhibited signs of
impairment.
Granted, “scientific evidence has manifest poten-
tial to influence a jury,” Eatinger, 298 Or App at 646, but
here, it is not clear that the jury would have viewed Miguel’s
challenged statements as scientific. The nature of the FSTs
was not a central issue and, when compared to the ample
Cite as 325 Or App 134 (2023) 151
evidence of impairment, there is little likelihood that the
jury’s verdict was affected by Miguel’s reference to FSTs as
“standardized” tests or by her statement regarding studies
that prove their validity. Cf. Beltran-Chavez, 286 Or App at
618 (The erroneous admission of testimony that the defen-
dant failed the walk-and-turn test was not harmless because
the other evidence that defendant was under the influence of
alcohol “was not overwhelming.”). The unpreserved error, if
any, was harmless, so we should not exercise our discretion
to consider it. See State v. Kerne, 289 Or App 345, 349, 410
P3d 369 (2017), rev den, 363 Or 119 (2018) (“One circum-
stance in which we will not and cannot exercise our discre-
tion to correct a plain error is when the error is harmless,
that is, when there is little likelihood that the error affected
the jury’s verdict.”).
There is another, perhaps more important, reason
why we should not exercise our discretion to engage in
plain-error review. By doing so, the majority creates a new
rule requiring trial judges to sua sponte strike testimony
regarding FSTs that may or may not be scientific.1 For the
majority, that new rule arises as a “necessary implication
from Reid.” 325 Or App at 139-40. But in Reid, relying on
Beltran-Chavez, we determined that it was plain error for
an officer to testify regarding passing or failing an FST, a
point conceded by the state. Reid, 312 Or App at 543-44.
In Reid, we made no statement concerning whether it was
plain error for the trial court to fail to sua sponte exclude the
testimony. If such a duty arises as a necessary implication
from Reid, then we should be especially careful not to invoke
1
Other state courts are more cautious about requiring a judge to inter-
vene beyond unequivocal vouching. See, e.g., State v. Hanes, 171 NH 173, 182,
192 A3d 952, 959 (2018) (“We have never held that a trial court must sua sponte
strike or issue a curative instruction with respect to witness testimony and, in
fact, we have suggested that courts should refrain from taking such action.”
(Underscoring in original; internal quotation marks omitted.)); Com v. Pimental,
54 Mass App Ct 325, 330, 764 NE 2d 940 (2002) (“[T]he trial judge’s responsibil-
ity to conduct a fair trial does not require her to act as an attorney for a pro se
litigant. Certainly, a defendant represented by counsel is entitled to no greater
process.”); State v. Wragg, 61 Conn App 394, 399, 764 A2d 216, 220 (2001) (“When
subsequent events reveal that [counsel’s strategic choice not to object] * * * was
an imprudent choice, however, the defendant is not entitled to turn the clock back
and have [the appellate court] reverse the judgment because the trial court did
not, sua sponte, strike the testimony and give the jury a cautionary instruction.”
(Internal quotation marks omitted.)).
152 State v. Ortiz
the plain-error doctrine when the claimed evidentiary error
is a close call and not obvious.
There is a significant difference between the ques-
tion of whether testimony is inadmissible and whether a
trial judge plainly errs by failing to sua sponte exclude or
strike the testimony. See State v. Corkill, 262 Or App 543,
551, 325 P3d 796, rev den, 355 Or 751 (2014) (“[T]he ques-
tion before us * * * is not whether the prosecutor’s cross-
examination of defendant was objectionable. Rather, the
pertinent question is whether the trial court plainly erred
by not interrupting the prosecutor’s cross-examination of
defendant sua sponte.”). The very act of sua sponte interven-
ing to either strike testimony or give a curative instruction
is wrought with peril. As one federal judge has cogently
explained regarding the practical effects of requiring judges
to sua sponte intervene during trial:
“A conclusion that the admission of certain evidence con-
stitutes plain error is a determination that the evidence
was so obviously inadmissible and prejudicial that, despite
defense counsel’s failure to object, the district court, sua
sponte, should have excluded the evidence. Thus, the exis-
tence of plain error review forces the district court, in an
effort to avoid the reversal of conviction and a retrial, to
intervene and exclude the evidence on its own initiative. In
determining whether to do so, the district court must either
ignore the possibility that defense counsel is choosing not
to object for strategic reasons (and therefore intervene in
every instance) or must weigh that possibility against the
potential time and cost of a retrial (assuming one is even
possible under the circumstances). To the extent the dis-
trict court even attempts the latter analysis, however, it
does so at a specific moment during the course of the trial
without the benefit of the entire record (in particular, what
other evidence the prosecution is prepared to offer, and
what use the prosecution or defense intends to make of
the evidence). Because it is extraordinarily difficult, if not
impossible, to determine, mid-trial, whether the admission
of a certain piece of excludable evidence prejudices a defen-
dant’s substantial rights, the possibility of a retrial creates
an incentive for the district court always to intervene. This
result essentially deprives defense counsel of the ability to
determine strategically a client’s most effective defense—a
consequence I would prefer to avoid.”
Cite as 325 Or App 134 (2023) 153
United States v. Smith, 459 F3d 1276, 1300-01 (11th Cir
2006) (Tjoflat, J., concurring) (emphasis in original; footnote
omitted).
When a witness, expert or otherwise, is asked
to comment upon the credibility of another witness, the
Supreme Court has instructed trial judges to sua sponte “cut
off the inquiry before a jury is contaminated by it.” State v.
Milbradt, 305 Or 621, 630, 756 P2d 620 (1988); see B.A. v.
Webb, 253 Or App 1, 12, 289 P3d 300 (2012), rev den, 353 Or
428 (2013) (“It is legally impermissible under Oregon law for
a witness to comment on the credibility of another witness,
and, in enforcing that principle, trial courts are obligated,
sua sponte, to exclude and, if necessary, strike testimony
that comments on a witness’s credibility.”); see also State v.
Chandler, 360 Or 323, 330-31, 380 P3d 932 (2016) (discuss-
ing history of the “judicially created rule” against vouching).
Such evidence is so obviously contrary to the fundamental
structure of our adversarial system that sua sponte inter-
vention is rightfully considered a part of the basic functions
of a trial judge. See Davis v. Cain, 304 Or App 356, 363,
467 P3d 816 (2020) (“Because credibility determinations are
the exclusive province of the jury, witnesses are categori-
cally prohibited from expressing a view on whether another
witness is ‘telling the truth.’ ” (Quoting State v. Middleton,
294 Or 427, 438, 657 P2d 1215 (1983).)). Now the majority
imposes a similar duty on trial judges whenever it appears
that a police officer may be about to testify regarding the
purpose of FSTs, that they are “standardized” tests, or why
law enforcement uses them. The basic, weighty concerns of
vouching and the functions of a jury are not at play here,
so we should not create a new rule requiring a sua sponte
intervention.
Indeed, even in vouching cases, we tend to apply the
rule sparingly. See Davis, 304 Or App at 368 (“[A]t least with
respect to ‘true’ vouching, a trial court may commit plain
error if it fails to sua sponte address vouching by a witness,”
but, “[t]o date, we have not reversed a conviction on direct
appeal on the basis that a trial court plainly erred in failing,
sua sponte, to address vouching by a prosecutor.”). In vouch-
ing cases, “if a witness’s testimony was ambiguous—such
that the witness may or may not have been vouching—there
154 State v. Ortiz
is no plain error in not having stricken the testimony sua
sponte, in part because the lack of objection prevented clar-
ification of the testimony.” State v. Murphy, 319 Or App
330, 335, 510 P3d 269 (2022). In addition, even if there was
unambiguous vouching that a trial court failed to strike sua
sponte, we have declined to exercise our discretion to cor-
rect the error if it was not grave and had little likelihood of
affecting the outcome. Id. at 338-40. Here, for the reasons
explained above, the officer’s challenged testimony may or
may not have been scientific, but it was not clearly so. As a
result, there was no plain error when the trial judge failed
to sua sponte intervene. In addition, even if the officer’s brief
statements about why FSTs are used could be construed as
scientific, we should not exercise our discretion to consider
the error because there is little likelihood that the officer’s
statements affected the jury’s verdict.
In vouching cases, we also consider “whether there
is a plausible tactical reason why defense counsel forewent
a motion to strike.” State v. Ramirez-Estrada, 260 Or App
312, 320, 317 P3d 322 (2013), rev den, 355 Or 317 (2014).
Here, there is a plausible reason. Although defense coun-
sel argued that the state could not meet its burden to show
that defendant was impaired, defense counsel’s other the-
ory of the case was that the state could not prove beyond
a reasonable doubt that she drove the vehicle. Before trial,
defense counsel objected to any testimony from the witness
who made the 9-1-1 call that would involve that witness
making an in-court identification of defendant as the person
who drove the vehicle. The state agreed that only the police
officer, who did not see defendant driving, would make an
in-court identification of defendant.
In his opening statement, defense counsel argued
that the “two basic issues” in the case were whether defen-
dant was driving and whether she was under the influence
of alcohol to an extent that she could not operate a vehicle
safely. He argued that “there is not one witness who is going
to be able to identify [defendant] as driving the vehicle.”
Defense counsel pointed out that the police were initially
responding to a report of domestic violence or harassment,
but “they quickly put that aside and figured, you know, let’s
Cite as 325 Or App 134 (2023) 155
go after [defendant] for driving with alcohol, despite not
having enough evidence that she was even driving the vehi-
cle at all.”
Based on that theory of the case, it is plausible that
defense counsel did not want to draw more attention to the
officer’s testimony regarding FSTs, their purposes, whether
they are nationally standardized, or their validity. Had
counsel objected, there was a risk that the state would either
establish the foundation with further testimony by Miguel,
or, potentially more damaging, provide another witness that
could buttress the officer’s testimony with scientific under-
pinnings and foundation. In vouching cases, when there is a
plausible explanation for defense counsel’s failure to object,
then it is not plain error for a trial court to fail to intervene
sua sponte. See State v. Vage, 278 Or App 771, 777, 379 P3d
645, rev den, 360 Or 697 (2016) (“It is well established that
an error does not qualify as plain error if the record contains
a competing inference that the party may have had a strate-
gic purpose for not objecting, and that competing inference
is plausible.” (Internal quotation marks omitted.)). The same
reasoning applies here. We should not engage in plain-error
review of defendant’s second assignment of error.
I briefly address the first assignment of error. Defen-
dant assigns error to the trial court’s ruling permitting
Miguel to compare defendant’s performance on the walk-
and-turn test to what Miguel would expect from a sober per-
son. The trial court did not err by admitting the testimony.
“[C]ertain officers may be practical experts in recognizing
intoxication, and, when they are, they may offer expert opin-
ions on that topic without first showing that the process by
which they arrived at their opinions is scientifically valid,
provided that their testimony does not imply that it is based
on science.” Beltran-Chavez, 286 Or App at 604. “Specialized
expert opinion evidence based on a witness’s training and
experience draws its force from that training and experi-
ence, but not necessarily from the mantle of science.” State
v. Rambo, 250 Or App 186, 195, 279 P3d 361 (2012), rev den,
353 Or 447 (2013). Here, Miguel testified regarding her
training and experience administering the walk-and-turn
test. That testimony was sufficient to qualify Miguel to offer
156 State v. Ortiz
an opinion comparing defendant’s performance on the test
to what she would expect from a sober person. Accordingly,
I would affirm the judgment of conviction.
Respectfully, I dissent.