State v. Baucum

OEC 702, and State v. O’Key require that scientific evidence presented by an expert be generally accepted, peer reviewed, with an acceptable error rate and variability, and retrograde extrapolation satisfies all of these requirements.

A State Trooper pulled defendant over for a broken tail light, and while speaking with defendant, the trooper smelled alcohol and saw that defendant’s eyes were bloodshot and glassy. Defendant failed various field sobriety tests, was arrested, and refused a breath test for blood alcohol content. Trooper obtained a search warrant for a blood sample to test defendant’s blood alcohol, and a nurse took the samples. Before trial, defendant filed a motion in limine to exclude expert testimony that defendant’s BAC could be accurately calculated at the time of the stop using a process called retrograde extrapolation. Defendant argued that the process does not provide an adequate foundation of scientific evidence required under State v. O’Key. The court granted an OEC 104 hearing on the retrograde extrapolation test, determined that the test satisfies the requirements under O’Key, and denied defendant’s motion in limine. As a result, defendant was convicted. Defendant appeals, assigning error to the denial of his motion in limine. The Court of Appeals reviewed whether the evidence presented against defendant was scientific, and whether it was admissible. The Court held that OEC 702, and O’Key require that scientific evidence presented by an expert be generally accepted, peer reviewed, with an acceptable error rate, and that retrograde extrapolation satisfies all of these requirements. Affirmed.