State v. McIntire

“[T]here is a critical difference * * * between arguing to the trial court as factfinder that it should be persuaded to decide the case in a particular way and arguing to the court as legal decisionmaker that only one outcome is permitted as a matter of law.” State v. M.D.M., 320 Or. App. 394, 396 (2022) (emphasis in original).

Defendant appealed convictions of first-degree manslaughter, fourth-degree assault, and driving while under the influence of intoxicants (DUII). Defendant assigned errors to the court’s denials of his motion in limine to bar results of a horizontal gaze nystagmus (HGN) test and of his motion to suppress evidence of his blood-alcohol content (BAC) taken without a warrant. “[T]here is a critical difference * * * between arguing to the trial court as factfinder that it should be persuaded to decide the case in a particular way and arguing to the court as legal decisionmaker that only one outcome is permitted as a matter of law.” State v. M.D.M., 320 Or. App. 394, 396 (2022) (emphasis in original). The Court reasoned that Defendant did not raise an argument at trial that the HGN test results were inadmissible or lacked sufficient foundation. As a result, the court could not make its own findings to resolve the matter at trial. Because the error was unpreserved, the Court affirmed admission of the test results. Further, the Court agreed the State met its burden of showing exigent circumstances in obtaining the BAC, and therefore, its admission was proper. Affirmed.