State v. Lusareta
Case # A152238
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A152238.pdf
Defendant Lusareta was driving a semi-trailer truck when a Police Officer saw him swerving in and out of his lane, nearly colliding with several cars and the guardrail. When the Officer stopped Lusareta, he noted that Lusareta smelled of alcohol and had red, glassy eyes. He also observed that Lusareta had urinated on himself. Lusareta consented to field sobriety tests and failed them. A breath test showed his BAC to be .15 percent. He was consequently charged with DUII, reckless driving, and recklessly endangering another person.
At trial, Lusareta argued that his BAC had increased significantly from what it was when he was stopped to the time his BAC was taken. He testified that he ate lunch and purchased four cans of beer, which he proceeded to drink while he was driving his truck. He further testified that he drank three cans between mile post 174 and the rest area located at mile post 144 and stopped at the rest area to throw away the three empty cans of beer. He then continued to drive until he was pulled over at mile post 119. At that point, he testified that he had not yet begun to feel the effects of alcohol. He contended that by the time of his breath test, his BAC had significantly increased from the time he was stopped.
To rebut Lusareta’s evidence, the State called on a forensic scientist who testified that Lusareta’s BAC would have been between .15 and .12 at the time he was stopped. The forensic scientist based her testimony on several different studies regarding alcohol absorption that showed that no test subjects had a rising BAC one hour after being stopped. One of the studies also showed that a breath analysis performed within two hours of a stop did not overestimate the BAC at the time of the stop. Lusareta was convicted of DUII and reckless driving, and he now appeals, arguing that the forensic scientist’s testimony was not scientifically valid.
The Court of Appeals explains that the scientist’s testimony was scientific in nature because she introduced herself as a forensic scientist, described the biological process of alcohol absorption in the blood, and explained that her theory was supported by peer-reviewed forensic science studies. The Court also concludes that the expert properly applied the facts to the methodologies of the studies of other experts in her field. Thus, the expert’s testimony was properly admitted, and Lusatera’s conviction is affirmed.