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State v. Schneider9/21/2005
eous because, under Chartrand, a witness may not testify that a particular breath test result creates a presumption that one is under the influence. The state contends that defendant has misread the holding of Chartrand, that its holding is inapposite to the facts and issues of this case, and that the legislature has, in fact, provided that a blood alcohol level of .08 or above "constitutes being under the influence of intoxicating liquor." ORS 813.300(2). We conclude that the state is correct in each respect.
We review the question of admissibility for errors of law, State v. Grey, 175 Or App 235, 245, 28 P3d 1195 (2001), rev den, 333 Or 463 (2002), and the court's ruling on the mistrial motion for an abuse of discretion, State v. Terry, 333 Or 163, 175-76, 37 P3d 157 (2001), cert den, 536 US 910 (2002).
Chartrand was a personal injury action in which the plaintiff sued a tavern owner who served alcohol to a customer who was "visibly intoxicated." 298 Or at 691. The customer left the tavern and negligently drove her vehicle into a head-on collision with the plaintiff. Id. The plaintiff offered the testimony of a police officer who stated that, under Oregon law, "'you are under the influence if your blood alcohol level is over .10 percent.'" Id. at 698. The defendant objected to the testimony, arguing that it was irrelevant to the question that the jury must determine, i.e., whether the person was "visibly intoxicated." The Supreme Court agreed:
" he fact that the state legislature has adopted a certain percentage of alcohol in the blood as legally constituting being under the influence of intoxicants is not relevant circumstantial evidence that the driver was visibly intoxicated. The legal standard does not prove that fact, nor tend to prove that fact."
Id. at 700-01.
Thus, the point of the decision was that the legal standard to which the witness had referred simply did not pertain to the standard that governed the issues in the case. In this case, in contrast, there is no such discontinuity. Defendant was charged with, among other things, driving under the influence of intoxicants. ORS 813.010. Under that criminal statute, " person commits the offense of driving while under the influence of intoxicants, if the person drives a vehicle while the person * * * has .08 percent or more [blood alcohol content]." (Emphasis added.) ORS 813.300(2) similarly provides that " ot less than .08 percent [blood alcohol content] constitutes being under the influence of intoxicating liquor." (Emphasis added.)
Osterholme's testimony thus pertains to the very issue before the court, that is, whether defendant was "under the influence of intoxicants." The trial court did not err in denying defendant's motions to strike and for a mistrial.
F. Second Motion for Mistrial
1. Relevant Facts
In his closing argument, defendant called into question whether the Intoxilyzer machine was completely operational. In rebuttal, the prosecutor replied:
"But this is our result. This is our result, .19. And it's unrefuted. He never once presented this to [the expert witness] and said, 'Refute this.' He couldn't. He wouldn't. Because he knows that this is a valid sample."
Defendant objected:
"Your Honor, I object to the district attorney arguing that I, [defense counsel], know that this is a valid sample on numerous grounds. The first is that it argues facts outside the evidence. Secondly, injecting my knowledge as to the validity of a test is irrelevant and extraneous to the issues that the jury must consider and decide in this case. And this is an attack upon defense counsel that is entire
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