State v. Morgan

In a DUII case involving a prescribed dose of medication, defense counsel may impeach the officer under OEC 706 as to the authority of the NHTSA manual which says that FSTs are not reliable to assess the impairment of someone who has taken that medication.

Defendant appealed his conviction for DUII for driving under the influence of Concerta, a generic form of Ritalin, for which he had a prescription to treat his ADHD. Defendant was drifting within his lane of travel, touching the fog line, was going 13 mph over the speed limit, and exhibited signs of impairment; the officer thought he smelled alcohol. Defendant failed Field Sobriety Tests (FSTs), but had a BAC of .00. At trial, defense counsel attempted to impeach the officer on cross-examination as to statements in the National Highway and Traffic Safety Administration (NHTSA) manual that FSTs do not reliably assess the impairment of someone who has ingested a prescribed dose of medication. The trial court excluded the statements. The Court of Appeals held that under OEC 706, an expert witness may be questioned concerning statements contained in a published treatise if that treatise is established as reliable authority. This error was not harmless and could have affected a jury’s verdict. Reversed and Remanded.