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State v. Riddle8/26/1998
95CR3069FE
In Banc*
Appeal from Circuit Court, Douglas County.
William Lasswell, Judge.
Argued and submitted September 29, 1997; resubmitted in banc February 11, 1998.
Reversed.
Warren, J., Dissenting.
*Linder, J., not participating.
Defendant appeals his convictions on two counts of criminally negligent homicide, ORS 163.145, two counts of fourth degree assault, ORS 163.160, and one count of driving while intoxicated, ORS 813.010. Defendant argues that the trial court abused its discretion in excluding certain evidence under OEC 403, and that the trial court erred in allowing the state to call as an expert witness an accident reconstructionist who had originally been retained to investigate the accident for the defense but was not called to testify by the defense. Defendant asserts that the expert's concerning the causation of the accident that led to the charges against him were privileged under OEC 503. Because we agree with defendant's second argument, we do not address his first assignment of error.
At about 9:00 p.m. on November 12, 1995, while defendant was driving his pickup truck across a bridge on Highway 38 near Elkton, he crossed the center line and struck an oncoming car. The driver, Keelie Garrison, and one of the passengers, Sarah Robbins, were killed instantly. Two other passengers were injured and another passenger had no injuries. A witness who arrived very shortly after the collision spoke with defendant and noticed an odor of alcohol on his breath. The witness reported his observation to a police officer who arrived shortly thereafter. Defendant denied having anything to drink that evening. The officer gave defendant several field sobriety tests and concluded that he was impaired. Defendant consented to an Intoxilyzer test, which was administered at 11:41 p.m. and which showed defendant's blood alcohol level to be .088 percent. Blood and urine tests done several hours later also revealed the presence of alcohol, as well as marijuana metabolites, in defendant's system.
At trial, a waitress from a nearby inn testified that she had served defendant beer earlier in the evening and tequila at about 8:00 p.m. Defendant drank some coffee, then left the inn between 8:45 and 9:00 p.m. At about 9:00 p.m., a motorist who was driving on Highway 38 at approximately 55 miles per hour was overtaken and passed by defendant's pickup truck. The motorist and her passenger both testified that they believed that the truck was traveling at least 75 miles per hour. Less than a minute later, the motorist came on the accident scene on the bridge.
The state called as an expert witness an accident reconstructionist, Tom Fries, who testified that, in his opinion, the accident occurred because defendant had come around the corner before the bridge too fast and crossed the center line and then over corrected, causing him to strike the oncoming car. He estimated that defendant's truck had been going between 53 and 80 miles per hour and that the car had been going between 42 and 49 miles per hour when the impact occurred.
Defendant called John Talbot, another accident reconstructionist, who testified that Fries' reconstruction of the accident was physically impossible and that he believed that the collision had occurred because defendant's steering had locked up. He estimated that defendant's speed had been between 49 and 58 miles per hour at the time of the collision. Several of defendant's friends testified that they had noticed problems with the steering on defendant's truck prior to the collision.
The state sought to introduce evidence from an
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