State v. Mello

“A trial court has sua sponte duty to exclude clearly scientific testimony regarding FSTs when it is presented without a proper foundation”. State v. Ortiz, 325 Or App 139. “Erroneously admitted evidence that relates to a central factual issue is more likely to have affected the jury’s determination”. State v. Whitmore, 257 Or App 664.

Defendant appeals a judgement of conviction for driving under the influence of intoxicants and reckless driving. Defendant assigns error to the trial court, arguing that the trial court plainly erred in not striking from the record the officer’s testimony regarding her field sobriety tests (FSTs), claiming that it was scientific evidence and the state did not lay the required foundation. Defendant further argues that the trial court erred in denying her motion for mistrial because the curative jury instruction was insufficient to rectify the states misstatement. “A trial court has sua sponte duty to exclude clearly scientific testimony regarding FSTs when it is presented without a proper foundation”. State v. Ortiz, 325 Or App 139. “Erroneously admitted evidence that relates to a central factual issue is more likely to have affected the jury’s determination”. State v. Whitmore, 257 Or App 664. The Court reasoned here that because the state did not lay the proper foundation for the scientific evidence of the FSTs, the trial court did err in allowing the testimony. The Court further reasoned that because the evidence was a central factual issue, the decision to admit it was not a harmless error. However because the likelihood of that error affecting the verdict was low, the Court declined to exercise their discretion. Therefore, the trial court did not abuse their discretion. Affirmed.