State v. Ohotto

Testimony on the rate of dissipation of alcohol in the blood is improper lay opinion where the deputy testifying merely read training manuals on alcohol dissipation, took a training course, and conducted routine DUII investigations.

Defendant appeals his conviction for driving under the influence of intoxicants in violation of ORS 813.010(1). At 2:23 pm, a forest deputy noticed Defendant visibly intoxicated at a public campground. Defendant told the deputy he had driven there 15 minutes earlier. Defendant denied drinking before he drove, but said that he drank 4-5 beers once getting to the campground, even though only one beer was found at the campsite. At 4:03 pm Defendant took a breath test that recorded a BAC of .17. At trial the deputy testified about alcohol dissipation in the blood stream and that a person of Defendant’s sex and size must have consumed more alcohol than Defendant admitted to consuming in order to have BAC of .17. The trial court reasoned that this testimony was in between scientific and lay opinion evidence. The Court of Appeals disagreed and found that the State did not lay a sufficient foundation to establish the deputy’s expertise. The deputy’s opinion was not the lay opinion that Defendant appeared intoxicated, but scientific testimony that required a calculation of physiological processes. It was not enough that the deputy read training manuals on alcohol dissipation, took a training course, and conducted routine DUII investigations. Reversed and remanded.