State v. Lusareta

Though State v. Mills asserts that, under Article I, section 11, of the Oregon Constitution, a criminal defendant “has a waivable constitutional right to object to improper venue by way of a pretrial motion”, if the law at the time of trial allows for objection of venue to be raised after the trail has begun, it is permitted to be considered an allowable objection.

Defendant was convicted of driving under the influence of intoxicants (DUII) and reckless driving. Defendant appealed the conviction and argued that (1) the expert opinion regarding blood alcohol concentration was wrongfully admitted during trial, and that (2) the denial of Defendant's motion for judgment of acquittal was erroneous. In regards to the second argument, specifically, Defendant highlighted that the State did not prove proper venue. In State v. Mills, it was determined that the State does not have to prove venue beyond a reasonable doubt and that a Defendant has a constitutional right to object to proper venue through pretrial motion. However, as was the case in Mills, here Defendant objected to proper venue at trial rather than by a pretrial motion. The Court of Appeals held that, because of the law at the time of the hearing, it would be unfair for a defendant to forfeit his or her right to object to proper venue. As to the first issue, the Court found the trial court did not err in allowing scientific testimony regarding blood absorption rates; the experts reference to studies conducted by other scientists and published in peer-reviewed journals was a sufficient basis for his opinion. Reversed and remanded.