Opinion
Nos. CFH060312; A135890.
Argued and submitted May 28, 2009.
June 9, 2010.
Appeal from the Umatilla County Circuit Court. Jeffrey M. Wallace, Judge.
Ryan T. O'Connor, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.
Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.
Before Landau, Presiding Judge, and Ortega, Judge, and Carson, Senior Judge.
ORTEGA, J.
Reversed and remanded.
Landau, P. J., dissenting.
I agree with the majority's analysis of the admissibility of the vertical gaze nystagmus (VGN) test. I do not agree, however, with its conclusion that the error in admitting evidence of the test was not harmless. In my view, there is little likelihood that any error in admitting evidence of the VGN test results affected the verdict. I would affirm on that ground and therefore respectfully dissent.
First, there is abundant evidence of defendant's intoxication. The arresting officer testified that he observed defendant driving 64 miles per hour (mph) in a 45 mph zone, quickly slam on the brakes to turn, and park on the wrong side of the street. Defendant misperceived his driving speed and the speed limit, and told the officer that he was going 45 mph in a 35 mph zone. The officer noticed a strong odor of alcohol when defendant spoke. Defendant's eyes were blood-shot and his speech was slurred. Defendant admitted to having consumed two beers, and the officer found the open cans in the vehicle. Defendant failed the walk-and-turn field sobriety test, and the horizontal gaze nystagmus (HGN) test revealed six out of six "clues" indicating intoxication. Defendant refused to take a breath test, from which the jury could draw an inference of defendant's own awareness of his intoxication. State v. Ohm, 224 Or App 390, 197 P3d 1136 (2008). In short, the evidence of defendant's intoxication was strong.
Second, the testimony about the inadmissible VGN test results was brief. The arresting officer's testimony takes up more than 22 pages of transcript. Of that, his description of the VGN test takes up a little more than a dozen lines. Moreover, when asked about the basis for his decision to arrest defendant, the officer replied that he based his decision on "[defendant's] driving, the odor of an alcoholic beverage, the fact that he told me he drank two beers, bloodshot eyes, slurred speech." The officer made no mention of either the HGN or the VGN test results.
Third, the prosecutor's references to the VGN test results were likewise quite brief. In both opening and closing statements, the prosecutor emphasized at some length the HGN test results and gave the VGN test results little more than passing reference. The prosecutor's closing, for example, takes up more than seven pages of transcript, the majority of which is devoted to a description of the HGN test results, which were properly admitted. After the extended discussion of the HGN test results, the prosecutor added:
"You also have the fact that [defendant] then had what they call — remember what the officer was talking about vertical nystagmus? Well, what does that tell you. The officer says it tells you that that's a high dose of alcohol for this particular individual. For him, this is more alcohol than he could handle."
That is the extent of the state's emphasis of the inadmissible evidence pertaining to the VGN.
The majority makes much of the fact that VGN evidence is "scientific" and thus has more potential to influence a jury. The statement is true, as far as it goes. But the fact remains that, in this case, the record shows that the scientific evidence on which the state overwhelmingly relied was not the VGN test, but the HGN test, which was admissible and is regarded as a "fairly reliable" indicator of alcohol impairment. State v. O'Key, 321 Or 285, 313, 899 P2d 663 (1995).
In my view, in light of the brevity of the references to the inadmissible VGN test results, and in light of the abun-dance of other, stronger evidence of intoxication and the state's clear emphasis on that other evidence at trial, I conclude that there was little likelihood that admission of the evidence affected the verdict. In other words, any error in admitting the VGN evidence was harmless, and the judgment of conviction should be affirmed in that basis.