# State v. Beltran-Chavez

> Court of Appeals of Oregon · July 6, 2017 · 286 Or. App. 590

URL: https://www.frixlaw.com/law-library/cases/8129163

## Case

- **Full name:** STATE OF OREGON, Plaintiff-Respondent v. ABELARDO BELTRAN-CHAVEZ
- **Court:** Court of Appeals of Oregon
- **Decided:** July 6, 2017
- **Citations:** 286 Or. App. 590; 400 P.3d 927; 2017 Ore. App. LEXIS 866
- **Precedential status:** Published
- **Opinion:** Dissent by Hadlock
- **Judges:** Devore, Duncan, Hadlock, Tempore
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8129163

## How later opinions describe it (automated extraction)

- holding in a preserved context that an officer’s tes- timony that the defendant had “failed” the walk-and-turn or one-leg-stand test was scientific because the jury would perceive that evidence as scientific, objective, and based on a numerical scoring system
- holding that “in order for testimony regarding whether defendant ‘passed’ or Tailed’ the FSTs to be admissible, the state needed to lay a proper foundation”
- noting that a conclusion that evidence is scien- tific only requires that the state lay an adequate foundation for it to be admissible

## Opinion text

HADLOCK, C. J.,
dissenting.
The majority has comprehensively and accurately reviewed the Oregon case law related to the admissibility of scientific evidence. See 286 Or App at 595-605.1 have no quarrel with its description of the cases and the fundamental principles that they establish. However, I disagree with the majority’s application of that law to the facts of this case. Accordingly, I respectfully dissent.
As part of his investigation of whether defendant had committed the crime of driving under the influence of intoxicants (DUII), Deputy Dueñas administered three field sobriety tests (FSTs). At trial, Dueñas testified about defendant’s performance on those tests. First, Dueñas explained how the horizontal gaze nystagmus (HGN) test works, described his observations of defendant’s eye movements, and asserted that defendant had exhibited six out of six clues on that test, meaning that he had failed it.
On direct examination by the prosecutor, Dueñas then described the walk-and-turn FST, which he explained is “broken up into an instructional phase and a walking phase”:
“The first part of the test is to set the—have the person stand with his right foot in front of his left in a heel to toe fashion with his arms at his side and to remain in that position until I’m done explaining the rest of the test, i.e., the walking test.
“Q. And after you explain the test, what do you do next?
“A. After I explain the walking test, I watch the defendant and make sure he takes the necessary steps. The nine steps before the turn and the nine steps after the turn. *620 I’m making sure that he keeps his hands to his side. He doesn’t stop walking, that he continues walking heel to toe and I should backtrack. He’s doing this on a line. In this case, [defendant] was doing it on an imaginary line and I’m making sure that he stays on that line.”
Dueñas testified that, after explaining the walking test, he demonstrated the test to defendant before asking him to perform the test himself.
Dueñas then described defendant’s performance on the test, explaining that defendant had started to walk before Dueñas told him to, that—after Dueñas told him to wait until Dueñas had explained the rest of the test— defendant moved his foot “like he couldn’t maintain his balance”, that defendant then took eight steps instead of nine, and that defendant “did an improper turn,” not in the way that Dueñas had demonstrated. Dueñas explained that he looks for “eight clues” in observing a person’s performance on the walk-and-turn test, and he testified that defendant exhibited four of those clues:
“A. He started too soon, unable to maintain balance in the instructional phase, the improper number of steps for the first set of nine steps and the improper turn.
“Q. But generally, as he was walking performing the nine steps down that imaginary line, he did pretty well on that?
“A. Yes.”
Defendant does not contend that any of that testimony should have been excluded.
The prosecutor then asked Dueñas about the third FST that he administered to defendant, the one-leg-stand test. Again, Dueñas explained the physical motions that the test involves, primarily raising one foot off of the ground with a pointed toe. Defendant showed only one clue on that test, putting his foot down once after he had succeeded in standing on one leg for between 21 and 30 seconds.
At that point, the prosecutor realized that he had forgotten to ask Dueñas about defendant’s “score” on the walk-and-turn test.
*621 “Q. And I should back up, I apologize I forgot to ask this. You testified that he showed four out of eight clues on the walk and turn?
“A. Yes.
“Q. Is that a passing or a failing score?
“A. Foil”
(Emphasis added.)
It is the last word of that testimony—“Fail”—to which defendant objected below and which the majority concludes requires reversal of his conviction. According to the majority, Duenas’s testimony that defendant failed the walk-and-turn test is “scientific evidence” for which a foundation had to be laid under State v. Brown, 297 Or 404 , 687 P2d 751 (1984), and State v. O’Key, 321 Or 285 , 899 P2d 663 (1995). I disagree.
The majority observes, correctly, that Duenas’s conclusion that defendant failed the walk-and-turn test was based on a scoring rubric developed through research and testing sponsored by the National Highway Transportation Safety Administration (NHTSA). 286 Or App at 607 at n 11. The majority acknowledges that the jury was not informed of that fact. Nonetheless, the majority asserts that the jury would have understood Duenas’s testimony that defendant failed the walk-and-turn test to be based on “application of the scientific method” because “there is no reasonable way for the expert to have derived the assertion other than through ‘application of a scientific method to collect data.’” Id. at 614 (quoting State v. Marrington, 335 Or 555, 564 , 73 P3d 911 (2003)). Thus, in the majority’s view, “the jury [would] perceive the proposition [that defendant failed a walk-and-turn test] to be based on science” even though neither Dueñas nor any other witness testified to that effect. Id. at 614-15 .
I disagree because, in my view, Duenas’s testimony would have conveyed nothing more to the jury than his own conclusion—based on his observations of defendant’s lack of balance and difficulty following instructions—that defendant had failed the walk-and-turn test, which Dueñas took into account in assessing whether defendant was impaired. *622 Nothing in Duenas’s testimony would have led the jury to believe that there was a scientific basis for his conclusion that defendant had failed the test. Accordingly, and as explained in more detail below, I would affirm the trial court on the basis that Duenas’s testimony was not scientific evidence that required a Brown/O’Key foundation.
As the majority explains, courts serve a gate-keeping function with respect to scientific evidence because of the danger that “jurors would view the evidence as having ‘an unusually high degree of persuasive power’ because of the perception that it is based on scientific assertions [.] ” State v. Dulfu, 282 Or App 209, 214-15 , 386 P3d 85 (2016), rev allowed, 361 Or 100 (2017) (quoting O’Key, 321 Or at 291-92 ). Evidence is not “scientific” merely because it draws force from an expert witness’s training and experience. State v. Rambo, 250 Or App 186, 195 , 279 P3d 361 (2012), rev den, 353 Or 203 (2013). Rather, what matters is whether the evidence “draws its convincing force from some principle of science, mathematics and the like.” Brown, 297 Or at 407 . Thus, a court assessing whether evidence is scientific “must determine whether the expert’s assertions ‘possess significantly increased potential to influence the trier of fact as scientific assertions.’” Marrington, 335 Or at 562 (quoting O’Key, 321 Or at 292 (emphasis added)).
In this case, Dueñas explained to the jury—in testimony that the majority acknowledges was admissible and not “scientific”—that defendant had exhibited four clues in taking the walk-and-turn test. Dueñas then testified that defendant’s score on that test was “Fail,” and he later elaborated, on cross-examination, that a person fails the walk-and-turn test if he or she exhibits at least two clues. Dueñas also testified that, based on his training and experience, he would not arrest a person solely on the basis that the person had exhibited two clues on the walk-and-turn test. Rather, Deunas suggested that he would take “everything” into account.
Beyond that, Dueñas did not inform the jury of the basis for his conclusion that defendant had failed the test. That is, Dueñas did not expound on why a person fails the walk-and-turn test if he or she exhibits four clues by starting the test before being told to do so, not maintaining *623 balance, taking an incorrect number of steps, and making an improper turn. Dueñas did not inform the jury that the failing score was based on a scoring rubric developed through research sponsored by NHTSA, he did not testify that the score was based on the “‘application of a scientific method to collected data.'" 286 Or App at 614 (quoting Marrington, 335 Or at 564 ), and he did not in any other way suggest that the score had a scientific basis. 1
Given that context, I see no basis for concluding, as the majority does, that the jury would have understood that Duenas’s “preposition to be based on science” and that “there is a correlation between the * * * presence of a certain number of clues [on the walk-and-turn test]—and *** intoxication—and that that correlation has been verified by application of the scientific method.” 286 Or App at 610, 614-15. Indeed, that conclusion is undercut by Duenas’s testimony that he would not arrest a person for DUII solely because the person exhibited two clues on the walk-and-turn test— even though that is a failing score.
I agree with the majority that there can be situations where the jury will perceive that an expert witness’s testimony is based on science even when the expert does not explicitly say so. The examples the majority supplies are apt: juries will understand that science is involved when a witness testifies about such things as distance measurement by lidar and measurement of alcohol impairment through HGN testing. 286 Or App at 612-13. But that is because those topics by their very nature “purport [] to draw [their] convincing force from a principle of science” and have value that “depends critically on the demonstrated scientific validity” of that principle. O’Key, 321 Or at 296-97 . The significance of those testing mechanisms and their results lies outside the common knowledge of lay persons. See Id. at 297 (noting that—unlike the HGN test, which “is not within the realm of common knowledge”—the walk-and-turn test obtains its *624 legitimacy “from effects of intoxication based on propositions of common knowledge”).
Here, in contrast, Dueñas testified only to “propositions of common knowledge” in describing the four ways in which defendant performed poorly on the walk-and-turn test, exhibiting a lack of balance and difficulty following Duenas’s instructions. And neither Duenas’s testimony nor any other evidence admitted at trial would have suggested to the jury that Duenas’s determination that defendant failed the test was based on the sort of science-based protocol that a jury might give extra weight.
In that regard, this case is analogous to Rambo, in which the defendant challenged a drug recognition expert (DRE) officer’s testimony that the defendant’s performance on several sobriety tests indicated that she was under the influence of narcotic analgesics. 250 Or App at 186 . The defendant argued that the DRE officer’s “ultimate opinion constituted scientific evidence, because it was based on portions of a series of tests that formed his procedure.” Id. at 192 (internal quotation marks omitted). We disagreed, explaining that—even though the officer relied on scientific evidence, including HGN evidence, in forming his opinion—the officer’s testimony did not “rely on the vocabulary of science [or] suggest that his conclusions had been reached through the application of a scientific method to collected data.” Id. at 195 . To the contrary, the trial court had “scrupulously sanitized the record of any evidence of a scientificially-based protocol, thereby mitigating the risk that [the officer’s] testimony would be given unfair weight beyond the credentials that he claimed.” Id. Accordingly, the trial court did not err in admitting the officer’s testimony.
Similarly here, although application of a science-based protocol formed the underlying basis of Duenas’s conclusion that defendant’s performance on the walk-and-turn test indicated a failure on that test, no evidence in the record would have suggested that fact to the jury. Moreover, defendant’s performance on the walk-and-turn .test itself was a matter within the jury’s ability to assess using common knowledge of the effects of alcohol intoxication. O’Key, 321 Or at 297 . Accordingly, the jury would not have been *625 surprised by—nor would it have given undue “scientific” weight to—Duenas’s conclusion that defendant’s multiple errors in performing the walk-and-turn task meant that defendant failed that test. In the end, Duenas’s testimony on that point told the jury little more than it could have concluded itself—that a person who cannot maintain his balance or follow directions when taking a walk-and-turn test has “failed” it.
For those reasons, I disagree with the majority’s conclusion that Duenas’s testimony that defendant failed the walk-and-turn test was scientific evidence that was inadmissible without a proper Brown/O’Key foundation. I respectfully dissent.
Defense counsel asked Dueñas on cross-examination whether “a specific part of the NHTSA manual is to instruct [the person taking the FST] not to start and then you observe after that if they start in violation of your rules?” Dueñas answered affirmatively. But even that reference to the NHTSA manual, elicited by defense counsel, did not inform the jury that NHTSA had developed the FSTs or that those tests were based on scientific research.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8129163. Public record. Not legal advice.