State v. Ortiz

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.