- Court: Oregon Court of Appeals
- Area(s) of Law: Evidence
- Date Filed: 07-11-2012
- Case #: A143475
- Judge(s)/Court Below: Brewer, J. for the Court; Sercombe, P.J.; and Egan, J.
- Full Text Opinion
Defendant appealed his conviction for DUII for driving under the influence of Concerta, a generic form of Ritalin, for which he had a prescription to treat his ADHD. Defendant was drifting within his lane of travel, touching the fog line, was going 13 mph over the speed limit, and exhibited signs of impairment; the officer thought he smelled alcohol. Defendant failed Field Sobriety Tests (FSTs), but had a BAC of .00. At trial, defense counsel attempted to impeach the officer on cross-examination as to statements in the National Highway and Traffic Safety Administration (NHTSA) manual that FSTs do not reliably assess the impairment of someone who has ingested a prescribed dose of medication. The trial court excluded the statements. The Court of Appeals held that under OEC 706, an expert witness may be questioned concerning statements contained in a published treatise if that treatise is established as reliable authority. This error was not harmless and could have affected a jury’s verdict. Reversed and Remanded.