State v. Ortiz

"Evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power. The function of the court is to ensure that the persuasive appeal is legitimate." State v. O'Key, 321 Or 285, 291, 899 P2d 663 (1995).

Defendant appealed a conviction for DUII and assigned error to the trial court's failure to strike the arresting officer's testimony about field sobriety tests (FSTs).  On appeal, Defendant argued that the testimony amounted to scientific evidence that was inadmissable because the State failed to provide a necessary foundation for it. In response, the State claimed that even if admission of the officer's testimony constituted legal error, it was harmless and likely did not influence the verdict.  Eatinger, Beltran-Chavez and Reid hold that law enforcement testimony constitutes scientific evidence when it describes FSTs as “nationally standardized” and “the product of scientific research” and must be excluded sua sponte if counsel does not condition the admission of such testimony by addressing the Brown/O’Key factors. Here, the arresting officer provided testimony that the FST administered to Defendant was “nationally standardized” and validated by scientific research.  The Court found the officer’s testimony was scientific evidence and as the State failed to address the Brown/O’Key factors to lay the predicate foundation, the trial court erred in admitting the testimony.  REVERSED and REMANDED.