State v. Eatinger

Defendant appealed his conviction of driving under the influence of intoxicants. Defendant assigned error to the trial court’s denial of his motion to strike and admission of the officer’s testimony concerning the scientific validation of field sobriety tests (FSTs). On appeal, Defendant argued the officer's testimony was scientific evidence and the trial court erred when it did not require a foundation for the testimony.  In response, the State argued the testimony was not admitted as “scientific” evidence because of the “historical fact” that FSTs are developed through scientific research. When testimony is scientific, the State is required to lay foundation using the Brown/O’Key factors.  State v. O’Key, 321 Or 285, 899 P2d 663 (1995); State v. Brown, 297 Or 404, 687 P2d 751 (1984). The Court concluded that the officer’s testimony was scientific because the officer expressly stated his testimony was based on science rather than training and experience. Additionally, the Court determined the trial court’s error in allowing the officer’s testimony was not harmless.

Reversed and remanded.