State v. Barrett

No. 944            December 26, 2024                 127

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
             SPENCER JOSEPH BARRETT,
                 Defendant-Appellant.
               Lane County Circuit Court
                 19CR17970; A181588

  Beatrice N. Grace, Judge.
  Submitted November 19, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Erica L. Herb, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
  TOOKEY, P. J.
   Portion of judgment requiring defendant to pay per
diem fees vacated; remanded for resentencing; otherwise
affirmed.
128                                           State v. Barrett

        TOOKEY, P. J.
         Defendant appeals a judgment of conviction for thirddegree assault, ORS 163.165, and driving under the influence
of intoxicants (DUII), ORS 813.010. Defendant raises two
assignments of error. In the first, defendant contends that the
trial court erred when it “allow[ed an officer] to testify that
field sobriety tests are nationally standardized,” because, in
defendant’s view, that testimony was scientific evidence without a proper foundation. Reviewing for legal error, State v.
Beltran-Chavez, 

, 

 (2017), we
conclude that the trial court did not err. In the second, defendant contends that the trial court erred in “ordering defendant to pay per diem fees” in the written judgment, because
the trial court failed to impose the fees at the sentencing
hearing. The state concedes the error and, consistent with
our decision in State v. Barr, 

, 

, rev den, 

 (2024), we accept that concession.
         Defendant was charged with second-degree assault
and DUII after he caused a head-on motor vehicle collision,
agreed to participate in field sobriety tests (FSTs), and was
arrested on suspicion of DUII. The state offered the testimony of a responding officer concerning the nature and reliability of the FSTs administered to defendant at the scene
of the incident. Defendant moved to exclude that testimony,
and the state opposed that motion. The trial court allowed
the challenged testimony, which is described below.
         In his first assignment of error, defendant challenges the trial court’s ruling allowing the officer’s testimony confirming that FSTs are “nationally standardized,”
a “nationally accepted method,” and an “accurate indicator”
of intoxication. In defendant’s view, “[e]ven if testimony that
FSTs are ‘standardized’ might not, all on its own, suggest
the imprimatur of science, the context of [the officer]’s testimony put that implication to the jury.” The state responds
that the officer’s testimony about national standardization
and acceptance of FSTs as accurate indicators of intoxication
was properly based on the officer’s training and experience.
        Having reviewed the record, including the officer’s
testimony in the context of the trial record as a whole, we do
Nonprecedential Memo Op: 

 (2024)                                129

not understand that testimony to have required a scientific
foundation. To the extent that its purpose was to underscore
the validity of FSTs, the testimony rested on the officer’s
training and experience regarding the proper administration and reliability of FSTs in discerning potential signs of
intoxication.
         This case is not like State v. Eatinger, 

, 631, 

 (2019), in which we determined that
an officer’s testimony that FSTs are “scientifically validated
and ‘the product of scientific research’ ” was scientific evidence requiring a scientific foundation. Here, the testifying
officer did not invoke “science,” “research,” or any related
source of validity for FSTs.
         This case is also not like State v. Ortiz, 

, 

 (2023), rev’d on other grounds, 

,

 (2024), on which defendant primarily relies. In
Ortiz, the challenged testimony included a reference to FSTs
being “supported by studies prov[ing] their validity,” which
we identified as “particularly concerning.” Id. at 138-39.
Here, the officer’s testimony did not include any reference to
“studies” or any other comment suggesting to the jury that
FSTs have scientific validity.1
         Thus, we conclude that the trial court did not err in
allowing the testimony, as supported by the officer’s training and experience in investigating DUII cases by administering FSTs.
         In his second assignment of error, defendant challenges the imposition of per diem fees in the judgment, after
the trial court did not mention fees at defendant’s sentencing hearing. The state concedes that the trial court so erred,
under our decision in Barr, 

, and that
concession is well-taken. We vacate the trial court’s imposition of the challenged fees and remand to the trial court for
resentencing.

     1
       This case is also not like our recent decision in State v. Hall, 

, ___ P3d ___ (2024) (slip op at 13), in which we determined that, “without
a proper foundation, officers cannot … testify that observing two or more clues
on [walk-and-turn test and the one-leg stand test] indicates impairment.” Suffice
it to say that the officer’s testimony in this case was different than the officer’s
testimony in Hall.
130                                       State v. Barrett

        Portion of judgment requiring defendant to pay per
diem fees vacated; remanded for resentencing; otherwise
affirmed.