State v. Hall

“[W]hen an officer testifies that two clues on the walk-and-turn test or the one-leg-stand test indicates impairment and that the officer observed that number or a higher number of clues, the testimony is scientific. As a result, it is inadmissible unless the state lays a Brown/O’Key foundation.”

Defendant appealed a conviction for driving while under the influence of intoxicants (DUII). At issue was testimony that Defendant displayed several “standardized clues” of impairment on field sobriety tests (FST). Defendant argues that the testimony was scientific, without foundation, and its admission was plain error.

When evidence implies and appeals to scientific grounding, its proponent must lay foundation for admission “based on the nonexclusive list of factors discussed in Brown, 297 Or at 417, and O’Key, 321 Or 299-306.”

Testimony of intoxication based on common signs of impairment may not be scientific. Beltran-Chavez, 286 Or App at 614. Should an officer testify that a defendant passed or failed a FST however, that testimony implies scientific grounding, and must be supported by foundation. Reid, 312 Or App at 542-43.

Although the officer testified regarding one FST which has been judicially recognized as scientifically valid (Horizontal Gaze Nystagmus), the walk-and-turn and one-leg-stand tests have not been similarly recognized, so before providing pass/fail testimony regarding such tests, foundation had to be laid.

Because the State did not lay foundation for the pass/fail testimony, the case was remanded to the trial court for a Brown/O’Key hearing on the testimony’s scientific validity.

“Reversed and remanded.”