State v. Brown

To qualify as an expert through training alone, a person must prove that they "acquired certain habits of judgment based on experience or special observation’ that enables him or her to draw from the facts inferences that are uniquely beneficial to the jury” regarding a subject. Mall v. Horton, 292 Or App 319, 324 (2018).

Defendant appealed a conviction of ORS 813.010, driving under the influence of intoxicants (DUII). Defendant assigned error to the trial court concluding that a police officer was a qualified expert. The officer testified that unlike a person who has nystagmus as a intoxication from alcohol consumption, a person who had nystagmus as a result of a traumatic brain injury would not exhibit all six “clues” on the horizontal gaze nystagmus (HGN) test. On appeal, Defendant argued the police officer was unqualified to be an expert witness on individuals with nystagmus as a result of a traumatic brain injury. In response, the State argued the police officer was qualified to testify as an expert on traumatic brain injuries and nystagmus and that, ultimately, the error was harmless. Mall v. Horton states that an expert is an individual who “has acquired certain habits of judgment based on experience or special observation that enables him or her to draw from the facts inferences that are uniquely beneficial to the jury” regarding a subject. Mall v. Horton, 292 Or App 319, 324 (2018). The Court held that the record demonstrates that the police officer lacked the in-depth knowledge necessary to inform the jury that the result of Defendant's HGN test was attributable to alcohol consumption and not a traumatic brain injury. The Court also held that the error was not harmless as the erroneous testimony “went directly to the heart” of defendant's theory of the case. State v. Davis, 366 Or 19, 34 (2003). Reversed and remanded.