¶1dissenting.
¶2In my view, the majority’s analysis ignores the jury’s prerogative to reject testimony that it does not believe. Because there was ample evidence from which the jury could have found that Deppmeier had served marijuana to Colby when she was visibily intoxicated, I dissent.
¶3The majority reasons that, because “[t]he evidence is uncontradicted that Deppmeier served Colby the marijuana at approximately 3:00 p.m. with the first glass of wine,” the jury *539could not infer that she was visibly intoxicated when she was served marijuana. 98 Or App at 538. There was also “uncontradicted” evidence, however, that Colby was visibly impaired at the scene of the accident at 7:30 p.m., that she had a blood alcohol level of .19 at 9:00 p.m. and that, given that Intoxilyzer reading, she must have consumed 11 drinks between 3:00 p.m. and 6:00 p.m. Because Deppmeier and Colby’s testimony regarding when and how much alcohol Colby consumed is completely inconsistent with that evidence, the jury was entitled to reject it entirely.
¶4Assuming that it did so, it could have drawn several inferences from the remaining evidence consistent with the finding that Colby was visibly intoxicated when she was served the marijuana. It could have reasoned, for example, that Colby registered a high blood alcohol content at 9:00 p.m. because she had consumed, not just two, but several shots of tequila. If that were the case, she could have been visibly intoxicated when later served marijuana with wine. Alternatively, it might have decided that Deppmeier and Colby must have been drinking and smoking all day, making it probable that Colby was visibly intoxicated whenever it was that she smoked the marijuana. Even if it believed that the marijuana was served at 3:00 p.m. with the first glass of wine, the jury could also have believed that the two shots of tequila, combined with a large glass of wine, had made her visibly intoxicated when Deppmeier served the marijuana.
¶5The point is that the majority bases its analysis on “uncontradicted” evidence that the jury was not required to believe. Even if it did accept that testimony, the evidence permitted the conclusion that Colby was visibly intoxicated when Deppmeier served her the marijuana. Because the evidence was sufficient to raise a question of fact for the jury, plaintiff was entitled to a new trial. I would affirm the trial court.