State v. Conner

PER CURIAM

Pursuant to ORAP 6.25, defendant moves for reconsideration of our opinion, State v. Conner, 132 Or App 478, 888 P2d 1087 (1995), in which we held that the state need not establish the scientific reliability of Horizontal Gaze Nystagmus (HGN) test evidence at trial.

Defendant points out that we failed to address his argument that, even if the results of the HGN test are admissible, the trial court correctly excluded Officer Maddox’s testimony in which he gave an opinion about defendant’s blood alcohol level based on the HGN test. Defendant asserts that Maddox was not qualified to express an expert opinion about defendant’s probable blood level based on the roadside HGN test. See State v. Jacobs, 109 Or App 444, 819 P2d 766 (1991). At oral argument, the state conceded that the trial court did not err in excluding that evidence on that basis. Accordingly, we allow defendant’s motion and affirm the exclusion of Maddox’s testimony concerning defendant’s blood alcohol level.

Reconsideration allowed; opinion modified and adhered to as modified.