396
Argued and submitted September 11; convictions on Counts 1 and 2 reversed
and remanded, otherwise affirmed October 28, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
RONALD DEAN MARTIN,
Defendant-Appellant.
Malheur County Circuit Court
18CR20788; A170865
477 P3d 452
Defendant appeals from a judgment of conviction for driving under the
influence of intoxicants, ORS 813.010(4), and reckless driving, ORS 811.140. He
assigns error to the trial court’s decision to grant the state’s motion in limine and
admit medical records into evidence that purported to show defendant’s blood
alcohol content after defendant was in a car accident. Defendant contends that
the state did not establish a chain of custody that linked the blood alcohol test
to defendant. The state contends that defendant’s argument is unpreserved, but
concedes that, if the argument is preserved, the trial court erred. Held: Defendant
sufficiently raised the chain-of-custody issue in a manner that allowed the state
to respond and the trial court to rule on a developed record. Therefore, defendant’s argument is preserved. Further, the court erred in granting the state’s
motion in limine, and that error was not harmless.
Convictions on Counts 1 and 2 reversed and remanded; otherwise affirmed.
Erin K. Landis, Judge.
Andy Simrin argued the cause for appellant. Also on the
brief was Andy Simrin PC.
Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
SHORR, J.
Convictions on Counts 1 and 2 reversed and remanded;
otherwise affirmed.
Cite as 307 Or App 396 (2020) 397
SHORR, J.
Defendant appeals from a judgment of conviction for
driving under the influence of intoxicants (DUII) (Count 1)
and reckless driving (Count 2).1 He assigns error to the trial
court’s decision to grant the state’s motion in limine and
admit medical records into evidence that purported to show
defendant’s blood alcohol content (BAC) after defendant was
in a car accident. Defendant contends that the state did not
establish a chain of custody that linked the blood alcohol test
to defendant. The state contends that defendant’s argument
is unpreserved, but the state concedes that, if the argument
is preserved, the trial court erred. We conclude that defendant’s argument is preserved and the court erred in granting the state’s motion in limine. Further, that error was not
harmless. As a result, we reverse and remand the judgment
of conviction on the DUII and reckless driving charges, but
otherwise affirm the judgment.
We state the background facts that are relevant
to understanding the evidence issue that is on appeal. The
state presented two witnesses, an Oregon Department of
Transportation (ODOT) employee and an Oregon State
Police (OSP) officer. The ODOT employee testified that he
and a colleague were driving on Highway 20 near milepost
239 in Malheur County between 4:30 a.m. and 4:45 a.m. on
January 27, 2018, when he observed skid marks and a damaged road sign. They found a wrecked pickup truck “quite a
ways off the road.” Defendant was “perched” against a tire
of the truck and appeared “hurt and in distress.” Emergency
medical personnel and law enforcement were summoned to
the scene. While they were waiting for assistance, the ODOT
employee observed “quite a few” beer cans, some tools, and
a battery charger scattered between the road and the truck.
Defendant smelled like alcohol when the ODOT employee
got near him.
The OSP officer testified that he arrived at the scene
around 5:34 a.m. and noticed “yaw marks” trailing off the
1
Defendant was convicted of those counts following a jury trial. In a separate bench trial, defendant was also found to have violated the vehicle code for
failure to properly use a safety belt, ORS 811.210(1)(g), but does not assign error
to that aspect of the trial court’s decision. A charge of criminal mischief in the
second degree was dismissed.
398 State v. Martin
road, a downed sign, damaged fence, and a pickup truck
out in a field. The officer observed beer cans in the “debris
field” and could smell an odor of alcohol coming from the
vehicle. As the officer arrived, defendant was being loaded
by the emergency responders for transport to St. Alphonsus
Medical Center in Ontario. The officer visited defendant at
the medical center approximately two hours later. Defendant
had been intubated in a trauma room, and the officer could
smell the odor of alcohol in the room. The officer testified
that, while in the trauma room, he observed that defendant’s
BAC was .10. Weeks later, the officer interviewed defendant
at the Malheur County Sheriff’s Office. Defendant acknowledged driving his truck on the night of the wreck but did not
recall being out earlier that evening at a restaurant lounge
or consuming alcohol.
Defendant presented two witnesses who were first
responders for Vale Fire and Ambulance. One of those witnesses testified that the beer cans at the crash site appeared
to be older. She also testified that she had been six to 12
inches from defendant’s face when she moved defendant into
a “C-spine support” and had not smelled alcohol on him. She
acknowledged that she smelled something that may have
been alcohol when defendant was rolled over. The other first
responder, who testified he was a longtime acquaintance of
defendant, also did not smell alcohol when near defendant,
but he did smell what could have been the stale odor of beer
near beer cans in the back of the wrecked pickup.
Before trial, defendant moved to suppress the content
of any medical records observed by the OSP at the medical center and any medical center records that were later
subpoenaed by the Malheur County District Attorney’s
Office. Defendant specifically sought exclusion of the
results of a blood alcohol test that was performed at St.
Alphonsus Medical Center on the morning of January 27,
2018. Defendant argued that the evidence was unlawfully obtained because, among several other reasons, the
test results had “no reported chain of custody.” Defendant
repeated the argument that “[n]o chain of custody was followed in the preparation of that BAC” at the hearing before
the trial court on the motion to suppress. Significant to this
Cite as 307 Or App 396 (2020) 399
appeal, the medical records relating to defendant’s blood-alcohol testing included the following caveat:
“Specimen analysis was performed without chain of
custody. These results should be used for medical purposes only and not for any legal or employment evaluative
purposes.”
The trial court denied defendant’s motion to suppress, stating at one point that it could not reach defendant’s
subconstitutional, chain-of-custody argument in the context
of that motion. The court further stated that defendant had
failed to give the state sufficient notice that he intended to
address chain-of-custody issues that may require the state
to produce foundational witnesses. The court suggested that
the issue was better suited to a motion in limine. The court
expressly reached some issues raised by defendant’s motion
to suppress but never reached the merits of defendant’s evidentiary argument that the blood-alcohol test results should
be excluded because there was no chain of custody linking
the tested blood to defendant.
Several months later on the eve of trial, the state
moved in limine to admit defendant’s medical records.
Defendant filed a memorandum of law in opposition to the
state’s motion in limine. Defendant again contended that
the medical center’s blood-alcohol testing was inadmissible
because the state had not laid a foundation demonstrating
a chain of custody linking the tested blood to defendant. As
to the issue of preservation, which is central to this appeal,
defendant specifically argued that
“[h]ere, the State has failed to meet the foundational
requirement of ORS 813.300(1). There was no chain of custody maintained of any blood sample taken from [defendant] on 1/27/2018, the sample was taken and maintained
in the control of St. Alphonsus Medical Center by unknown
personnel until the point that results were provided to law
enforcement. Without a documented chain of custody, the
State cannot prove beyond a reasonable doubt that the
sample in question was obtained from [defendant].”
In the same section as the argument above, defendant contended that the blood-alcohol test results could not be used
to prove DUII under ORS 813.300 because there was no
400 State v. Martin
evidence that the laboratory used by the medical center met
certain accreditation and certification standards mentioned
in ORS 813.160(1).2
At the hearing on the motion in limine, the state,
defendant, and trial court all focused on other issues raised
by the state’s motion and defendant’s response, including
whether the state had to prove the medical center laboratory was certified to admit the blood-alcohol test results.
The parties and court did not address the chain-of-custody
issue. Defendant, however, made clear at argument that he
was at the hearing to address “just a couple of points to add
to my response to the motion, essentially.” In other words,
defendant was not abandoning any arguments raised in his
written response. The court ultimately granted the state’s
motion in limine, admitting portions of the medical center records, including the blood-alcohol test results, while
ordering the redaction of certain prejudicial statements in
the records that were unrelated to blood-alcohol testing.
The medical records were then admitted at trial
over defendant’s continuing objection as state’s Exhibit 1.
There was no accompanying testimony from a state witness,
such as a medical center employee, regarding the steps taken
either during or following defendant’s blood-alcohol testing.
In his opening statement, the state prosecutor referred to
Exhibit 1 generally, as well as defendant’s .10 BAC result
specifically. As noted above, the OSP officer also testified
that, while at the medical center, he had observed defendant’s BAC was .10.
In a combined argument in his opening brief filed
with this court, defendant assigns error to both (1) the trial
court’s decision to deny his motion to suppress the medical
records and (2) its later decision to grant the state’s motion
in limine and admit those records at trial over defendant’s
objection. At oral argument, however, defendant’s counsel
stated that the chain-of-custody issue raised in the motion
to suppress was rendered “moot” by the trial court’s later
2
ORS 813.300 provides when and how blood-alcohol content may be used as
evidence that a defendant was driving under the influence of intoxicants. ORS
813.160(1) provides that a chemical analysis is valid under ORS 813.300 when it
is performed in certain laboratories or under certain methods.
Cite as 307 Or App 396 (2020) 401
decision to reach the merits of that issue when granting
the state’s motion in limine. Based on that argument, we
understand defendant to ask us to address the merits of the
trial court’s ruling in his second assignment of error, which
assigns error to the court’s grant of the state’s motion in
limine. We do so below.
Defendant contends that the trial court erred in
granting the state’s motion in limine to admit the medical
records because the state did not demonstrate a chain of
custody that showed that the blood-alcohol test traced back
to and was, in fact, a test of defendant’s blood.3 As noted
above, the state contends that defendant’s argument is not
preserved, but concedes that, if preserved, the court erred
by rejecting the merits of that argument.
We begin with preservation. As a general rule,
assignments of error “that were not raised in the trial court
will not be considered on appeal” due to the strong policies
favoring preservation. State v. Walker, 350 Or 540, 548,
258
P3d 1228 (2011). We have stated:
“To preserve an argument for appeal, the appellant
must demonstrate that the question or issue presented by
the assignment of error timely and properly was raised
and preserved in the lower court. The appellant must have
made the argument with sufficient particularity to allow
the trial court to rule on the argument and correct any
error.”
State v. Reeves, 250 Or App 294, 301,
280 P3d 994, rev den,
352 Or 565 (2012) (citations and internal quotation marks
omitted). There are prudential and pragmatic considerations that underlie the preservation rule that both ensure
fairness to the parties and an opportunity for the trial court
to confront the issue first based on a developed record. Thus,
the Supreme Court has noted that the prudential policies of
3
In a separate argument, defendant also contends that the admission of the
medical records without a supporting witness violated his right of confrontation
under Article I, section 11, of the Oregon Constitution “to meet the witnesses face
to face” in a criminal prosecution. Because we are reversing and remanding this
case based on a subconstitutional ground that reaches the same result, namely
the exclusion of the blood-alcohol test result on this record, we do not reach defendant’s constitutional argument. If this issue arises again on remand, it may arise
on a different record.
402 State v. Martin
preservation (1) “[give] a trial court the chance to consider
and rule on a contention, thereby possibly avoiding an error
altogether or correcting one already made”; (2) “[ensure]
fairness to an opposing party, by permitting the opposing
party to respond to a contention” and avoid surprise; and
(3) “[foster] full development of the record, which aids the
trial court in making a decision and the appellate court in
reviewing it.” Peeples v. Lampert, 345 Or 209, 219-20,
191
P3d 637 (2008).
The preservation rules are “pragmatic as well,” and
“[w]hat is required of a party to adequately present a contention to the trial court can vary depending on the nature
of the claim or argument[.]” Id. at 220. The ultimate touchstone is “procedural fairness to the parties and to the trial
court.”
Id. In close calls, we have avoided an overly formulaic approach and turned to the practical consideration of
“whether, given the particular record of a case, the court
concludes that the policies underlying the rule have been
sufficiently served.” Walker,
350 Or at 548 (citing State v.
Parkins,
346 Or 333, 341,
211 P3d 262 (2009)).
Applying those principles, we conclude that defendant sufficiently raised the chain-of-custody issue in a manner that allowed the state to respond and the trial court to
rule on a developed record. First, we note that defendant had
previously raised the chain-of-custody issue in his motion to
suppress, and the court expressly declined to reach the merits of that issue at the suppression hearing, concluding that
it was an evidence issue and the state should have an opportunity to address it with a possible witness in a later hearing in the context of a motion in limine. The state had been
alerted to that issue earlier in the criminal proceeding, and
the court had deferred ruling on the merits of the evidence
issue. Although defendant’s argument in the suppression
motion would likely not be sufficient on its own to preserve
the issue in an appeal of a separate ruling on a motion in
limine, the earlier dispute in the suppression motion provides at least some context for the parties’ subsequent litigation over the issue in the motion in limine.
More importantly, in response to the state’s motion
in limine, defendant raised the specific argument that he
Cite as 307 Or App 396 (2020) 403
now raises before us, namely that, “[w]ithout a documented
chain of custody, the State cannot prove beyond a reasonable
doubt that the sample in question was obtained from [defendant].” That argument comprised an entire paragraph of
defendant’s memorandum of law opposing the state’s motion
in limine, addressed the chain-of-custody issue, and noted
the absence of supporting evidence of custody from any medical center employee.
We acknowledge the state’s argument that this key
paragraph was included within a section addressing a different argument supporting the exclusion of the medical
records. Further, defendant’s argument mentioned a burden
of proof that does not appear relevant to the issue of chain
of custody. However, in light of the pragmatic considerations
at play in preservation issues, we conclude that defendant’s
specific written argument addressing the chain-of-custody
issue preserved that issue for appeal, particularly in the
context of an issue that was similarly disputed earlier in the
proceedings and then set aside for an evidentiary hearing.
Defendant’s argument to the trial court was sufficient to
alert the state and the court that defendant was asking the
court to deny admission of the blood-alcohol test results, at
least in part because the state did not present evidence that
the blood tested was defendant’s. Although the best practice
would have been for defendant to raise the issue again at the
hearing on the motion in limine to remind the court to rule
specifically on that issue, there is no requirement “that each
and every argument that has been asserted in writing must
be repeated orally in court in order for the argument to be
preserved.” Walker, 350 Or at 550.
Having concluded that the argument is preserved,
we turn to the merits of the dispute. As noted, the state
concedes that, if the issue is preserved, then the trial court
erred in denying the motion in limine, because the state did
not establish a chain of custody that linked the medical center’s blood-alcohol test to defendant. We agree and accept
that concession. OEC 901(1) provides that
“[t]he requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.”
404 State v. Martin
We have stated in the context of a DUII case involving a
blood draw that a “[s]howing that the blood sample was a
valid blood draw from defendant involves laying a traditional chain of custody foundation[.]” State v. Owens, 207 Or
App 31, 41,
139 P3d 984 (2006), rev den,
342 Or 503 (2007).
As a general rule, when something is taken from a defendant for the purpose of testing, a foundation must be established through testimony by the persons who had possession
or custody of the item taken. State v. Summers,
277 Or App
412, 421,
371 P3d 1223, rev den,
360 Or 465 (2016). The trial
court has discretion to determine how much of a foundation
is required under the circumstances to establish that “there
is a reasonable probability that the evidence has not been
changed in important respects.” Id. at 421-22.
Here, defendant argued to the trial court that the
state did not sufficiently establish that the blood-alcohol test
results could be traced back to defendant’s blood. The court
admitted the test results without a witness and concluded
that the medical reports that contained the results were selfauthenticating. But those records alone did not provide sufficient support to overcome the challenge to the chain of custody. Indeed, the report stated that the “[s]pecimen analysis
was performed without chain of custody.” The court erred in
admitting the evidence of the blood-alcohol test results over
defendant’s objection because, on this record, the court could
not determine that there was a reasonable probability that
the test results traced back to defendant’s blood.4
We turn to the issue of whether the error was harmless on this record. We must affirm the convictions for DUII
and reckless driving if we conclude that there is “little
likelihood that the particular error affected the verdict.”
State v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003) (interpreting Article VII (Amended), section 3, of the Oregon
Constitution). However, we have little difficulty concluding
that the improper admission of a blood-alcohol test result
in a prosecution for DUII and reckless driving had more
4
We do not conclude that a trial court could never determine a chain of custody for a medical test based on properly admitted medical records alone. We do
not reach that issue. Rather, we hold only that the trial court erred in concluding
that the medial records in this case could, on their own, establish a chain of custody for the blood-alcohol test results.
Cite as 307 Or App 396 (2020) 405
than a “little likelihood” of affecting the verdict. Although
there was other evidence that defendant drove impaired or
recklessly on the morning in question, the blood-alcohol test
results were important evidence against defendant, and
were highlighted in the state’s opening and closing arguments in support of the convictions for DUII and reckless
driving. The erroneous admission of the blood-alcohol test
results was not harmless.
Finally, the state argues that we should issue a limited remand that remands this case solely for the trial court
to conduct a hearing to allow the state to try to cure the
chain-of-custody issue and, if it can, the court may reinstate
the DUII and reckless driving convictions. The state cites
no authority in support of that argument. We are not persuaded by the state’s argument to direct such a specific limited remand and, instead, reverse and remand the judgment
for the trial court to determine the appropriate nature of the
proceedings on remand. See State v. Plueard, 297 Or App
592, 595,
443 P3d 1195 (2019) (reaching the same result).
Convictions on Counts 1 and 2 reversed and
remanded; otherwise affirmed.
