328 September 27, 2023 No. 504

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

BRIAN JAMES McINTIRE,

Defendant-Appellant.

Linn County Circuit Court

19CR48522; A175345

Thomas McHill, Judge. (Judgment entered January 19, 

2021; Supplemental Judgment entered April 16, 2021)

Brendan J. Kane, Judge. (Order entered May 4, 2021)

Argued and submitted February 2, 2023.

Kyle Krohn, Deputy Public Defender, argued the cause 

for appellant. Also on the briefs was Ernest G. Lannet, 

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued 

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and 

Pagan, Judge.

SHORR, P. J.

Affirmed.
Cite as 328 Or App 328 (2023) 329

SHORR, P. J.

Defendant appeals from a judgment of conviction for 

first-degree manslaughter, ORS 163.118 (Counts 1 and 2); 

fourth-degree assault, ORS 163.160 (Count 4); and driving under the influence of intoxicants (DUII), ORS 813.010 

(Count 5).1

 On appeal, defendant raises two assignments of 

error. His first assignment challenges the trial court’s denial 

of his motion in limine to exclude the results of horizontal 

gaze nystagmus (HGN) test. We conclude that defendant’s 

argument is not preserved. Because defendant does not 

request plain-error review, we do not consider whether the 

requisites of plain-error review are satisfied or otherwise 

engage in that review. In his second assignment of error, 

defendant challenges the trial court’s denial of his motion 

to suppress evidence of his blood-alcohol content (BAC) 

obtained through an unwarranted forensic blood draw. We 

conclude that the trial court did not err in determining that 

the warrantless search and seizure of defendant’s blood was 

justified by exigent circumstances. We affirm.

FACTS

On the evening of July 23, 2019, defendant was 

involved in a motor vehicle crash that resulted in the deaths 

of two people. Evidence presented at trial showed that defendant had consumed five 14-ounce beers during the four hours 

before the crash. Sheriff Deputy Brent Hauke administered 

field sobriety testing at the site of the crash, including the 

HGN test, which involves moving a stimulus horizontally 

while watching for involuntary jerking of the individual’s 

eyes. Hauke observed six out of six signs of impairment on 

the HGN test.

Defendant was subsequently arrested and transported to the hospital. At that point, defendant declined to 

consent to testing of his blood or urine, and Hauke decided 

to perform a forensic blood draw based on exigent circumstances. A hospital phlebotomist was preparing to perform 

a medical blood draw and agreed to perform both the medical and forensic draws at the same time in order to avoid 

1 Defendant was acquitted of a second charge of fourth-degree assault 

(Count 3).
330 State v. McIntire

having to draw blood more than once. Hauke provided the 

phlebotomist with a forensic kit, and she drew several vials 

of blood for both medical and forensic purposes. Several 

hours later, more than six hours after the crash, investigators had obtained a warrant for another blood draw and 

drew another sample.

Each of the samples returned different results. 

Testing by the Oregon State Police crime lab of the forensic 

vial revealed a BAC of 0.058. The medical vial revealed a 

BAC of 0.073 when tested by the hospital on the night of the 

accident and 0.039 when tested weeks later by the crime lab. 

The blood sample taken pursuant to the warrant showed 

a BAC of zero. An expert medical witness testified that 

the variations in the results from the medical and forensic draws, despite being taken from defendant at the same 

time, were due to the parts of the blood tested and the lack 

of preservatives in the medical vial which led to the evaporation of alcohol from the medical sample over the intervening 

weeks. The same expert testified that, based on all of the 

evidence available to him, he estimated defendant’s BAC at 

the time of the accident to be between 0.091 and 0.139.

The jury found defendant guilty of manslaughter, 

assault, and DUII. This appeal followed.

HGN EVIDENCE

In his first assignment of error, defendant challenges the trial court’s denial of his motion to exclude evidence of the results of the HGN testing performed shortly 

after the accident. He asserts that the state failed to meet 

its burden to establish the scientific validity of the administration of the test, and thus the trial court erred in admitting the test results as scientific evidence. The state argues 

that defendant failed to preserve the particular argument 

he raises on appeal and, in any event, the trial court did 

not err. Alternatively, the state argues that any error was 

harmless. We conclude that defendant did not adequately 

preserve the issue for our review.

“No matter claimed as error will be considered on 

appeal unless the claim of error was preserved in the lower 

court[.]” ORAP 5.45(1). “[A] party must provide the trial 
Cite as 328 Or App 328 (2023) 331

court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged 

error with enough clarity to permit it to consider and correct 

the error immediately[.]” State v. Wyatt, 331 Or 335, 343, 15 

P3d 22 (2000). The policy reasons favoring preservation are 

prudential in nature: it “gives a trial court the chance to 

consider and rule on a contention, thereby possibly avoiding 

an error altogether or correcting one already made, which 

in turn may obviate the need for an appeal”; it also “ensures 

fairness to an opposing party,” and “fosters full development 

of the record[.]” Peeples v. Lampert, 345 Or 209, 219-20, 191 

P3d 637 (2008).

Defendant’s assignment of error arises out of the 

court’s denial of his motion to exclude the results of the HGN 

test. In his initial written motion to the trial court, defendant argued that the HGN test results could not be admitted 

as scientific evidence of the effects of alcohol because defendant had suffered a head injury in the accident. Arguing 

that head trauma can cause nystagmus independent of the 

influence of alcohol, defendant asserted that the state could 

not show that the results were scientifically relevant and 

reliable, and thus did not meet the foundational requirements of State v. O’Key, 321 Or 285, 899 P2d 663 (1995), to 

be admitted as scientific evidence.2

 In response, the state 

argued that the presence or absence of a head injury was a 

factual issue that must be argued to a factfinder and did not 

create a foundational issue that had to be disproved before 

the HGN test results were admissible. The state asserted 

that, under O’Key, it was merely required to establish that 

the officer who administered the test was qualified, that 

the test was properly administered, and the results were 

recorded accurately, all of which the state asserted it was 

prepared to show.

2 In O’Key, the Supreme Court determined that HGN test evidence is scientific evidence. 321 Or at 297. Applying a multifactor test, the Supreme Court concluded that “the general proposition supporting HGN test evidence—that alcohol 

consumption causes nystagmus—is scientifically valid.” Id. at 319. The Supreme 

Court held that “subject to a foundational showing that the officer who administered the test was properly qualified, the test was administered properly, and the 

test results were recorded accurately, HGN test evidence is admissible in a DUII 

proceeding to establish that a defendant was under the influence of intoxicating 

liquor[.]” Id. at 322-23.
332 State v. McIntire

A hearing was held on June 30, 2020, regarding the 

various evidentiary issues raised in defendant’s motion. The 

state called Deputy Hauke and questioned him about his 

training and experience and how the HGN test is generally performed and what it shows. With respect to the day 

in question, Hauke testified that he administered the test 

consistent with his training and experience and that he 

had observed six out of six clues of impairment. The state 

then played the dash camera video of Hauke conducting the 

HGN test on defendant and, after confirming that Hauke 

had recently reviewed materials about how to perform the 

test, further questioned him:

“Q. Okay. And having reviewed the materials, could 

you spot any instance where you deviated from the course 

material or the training materials that you had provided?

“A. The only deviation that’s possible is during the 

distinct and sustained nystagmus, they want you out for 

about four seconds, maybe I might have been just a little bit 

under at the maximum deviation, but—but other than that 

. . .

“Q. That notwithstanding, did you nevertheless 

observe nystagmus at maximum deviation?

“A. Yes, I did.”

On cross-examination, defense counsel had the following 

exchange with Hauke:

“Q. So, you testified that you may have been not out 

quite long enough on the sustained—distinct and sustained nystagmus.

“A. On one of the passes through, yes.

“Q. So that test is—essentially what you’re looking for 

is whether the nystagmus remains over a period of time, 

correct?

“A. Correct.

“Q. Because everybody has a little bit of nystagmus 

when their eyes first get out to maximum deviation, correct?

“A. I don’t think so.

“Q. So in—
Cite as 328 Or App 328 (2023) 333

“A. I don’t know if everybody does.

“Q. But it’s common?

“A. I don’t know.

“Q. And that’s not something that you remember from 

your training?

“A. That it’s common? No.”

Counsel then moved on to other topics, including defendant’s 

head injury and emergency lights that were in the area that 

could have impacted defendant’s eyes.

In concluding arguments to the court, the state 

asserted that it had met its foundational burden under 

O’Key, because Hauke testified about his qualifications and 

experience, that he administered the test properly, and that 

he recorded the results accurately. In arguing that the test 

was properly conducted, the state argued:

“The only thing he said, that he admitted, was that he may 

have gone under four seconds at maximum deviation. I 

would argue that that does—that that does not invalidate 

the HGN results, particularly since he observed nystagmus 

prior—I mean he observed nystagmus prior to onset and 

that he continued to observe it at maximum deviation.

“And I’d ask maybe you review the video. From my perspective it looked like he held it there for a long time, but 

it’s hard to tell from the angle. But you can—you can see 

that he did—it wasn’t a cursory holding out there, it was—

it was for a few seconds.

“And so he did administer the test properly.”

Defense counsel argued that the foundational requirements 

were not met due to Hauke’s lack of recall about his training and errors in the administration of the test, specifically 

the presence of flashing lights and the angle and distance 

at which Hauke held the stimulus. In sum, defense counsel 

stated:

“[I]t is clear, Judge, that at least important parts of this 

test were not administered per the training, and it’s even 

questionable that Deputy Hauke remembered all—all these 

parts. There’s so much that he says he didn’t remember and 

there’s really a lack of evidence that he was properly—or 
334 State v. McIntire

that he was trained according to what the Administrative 

Rules require.”

In a written opinion, the court denied defendant’s 

motion to exclude the HGN evidence. Noting that Hauke’s 

qualification to perform the test was the primary issue 

raised by defendant, the court concluded that Hauke had 

received the proper training. The court further noted that 

there was no evidence that the test results were not accurately recorded and that Hauke had testified that he performed the test consistently with his training. The court 

also acknowledged that it had reviewed the various recordings of the incident. Finally, the court stated that defendant 

had denied any symptoms of a brain injury at the time of the 

testing and there was no evidence in the record that he had 

suffered a concussion. For those reasons, the court denied 

the motion to exclude the HGN results. The court did not 

mention or resolve any issues regarding lights, the positioning of the stimulus, or the duration for which the officer held 

the stimulus at maximum deviation.

In his briefing before us, defendant’s challenge 

focuses entirely on the requirement that the stimulus be 

held for four seconds at maximum deviation. Based on 

Hauke’s testimony that “maybe I might have been just a 

little bit under at the maximum deviation” on one of the 

passes, defendant asserts that the state failed to present 

any evidence to support an inference that Hauke administered the test correctly. Defendant argues that the state 

did not meet its burden to prove that the results were scientifically valid, and the HGN evidence was therefore not 

admissible. Defendant maintains that the issue is preserved 

because he argued below that Hauke did not administer 

the test according to his training, and the state specifically 

addressed maximum deviation in its argument.

The state argues that the issue was not properly 

preserved. It notes that defendant raised other objections 

to the foundation for the evidence, including the lights, the 

positioning of the stimulus, defendant’s head injury, and the 

officer’s training, but did not contend that the test was performed incorrectly due to the length of time that Hauke held 

the stimulus at maximum deviation. The state emphasizes 
Cite as 328 Or App 328 (2023) 335

that defendant argued his interpretation of the evidence, 

urging the court to find that the test was not performed correctly as a factual matter, but notes that he never asserted 

that the evidence was legally insufficient to support a finding that the test was performed correctly.

We agree with the state that defendant failed to 

preserve the argument he now raises. Despite making arguments below regarding how the trial court should view the 

evidence and what factual conclusions it should draw, defendant never raised an argument that the test results were 

unreliable as a matter of law based on the officer’s failure to 

hold the stimulus for the full four seconds at maximum deviation. Defendant never maintained that the HGN evidence 

was inadmissible or lacked a sufficient foundation because 

there was no evidence that the officer held the stimulus for 

a sufficient amount of time.

“[T]here is a critical difference ** * between arguing 

to the trial court as factfinder that it should be persuaded to 

decide the case in a particular way and arguing to the trial 

court as legal decisionmaker that only one outcome is permitted as a matter of law.” State v. M. D. M., 320 Or App 394, 396, 

513 P3d 622 (2022) (emphases in original). Had defendant 

raised that argument below, the state would have had the 

opportunity to meet the argument and respond to it, potentially developing the record differently, and the trial court 

would have had the opportunity to make specific findings and 

resolve the matter in the first instance. See Peeples, 345 Or 

at 219-20 (discussing the underlying policies of preservation 

rules, including fairness and efficiency). The claim of error 

raised on appeal is unpreserved, and we reject it on that basis.

When an issue was not preserved in the trial court, 

we have discretion to consider a claim of plain error. ORAP 

5.45(1). “However, we ordinarily will not proceed to the 

question of plain error unless an appellant has explicitly 

asked us to do so,” as “it is incumbent upon the appellant to 

explain to us why an error satisfies the requisites of plain 

error and, further, why we should exercise our discretion 

to correct that error.” State v. Ardizzone, 270 Or App 666, 

673, 349 P3d 597, rev den, 358 Or 145 (2015) (internal quotation marks omitted). Defendant does not request plain-error 
336 State v. McIntire

review in this case, and we therefore do not undertake that 

analysis.

WARRANTLESS BLOOD DRAW

In his second assignment of error, defendant challenges the court’s denial of his motion to suppress the results 

of the forensic blood draw. As noted above, after defendant 

was transported to the hospital, a phlebotomist drew multiple vials of blood, some for medical purposes and some for 

forensic purposes. In a pretrial motion, defendant argued 

that the forensic draw, which was performed without a warrant, was an unlawful search and seizure under Article I, 

section 9, of the Oregon Constitution. The trial court concluded that the state had met its burden of demonstrating 

exigent circumstances to permit the warrantless blood draw.

We review the trial court’s denial of defendant’s 

motion to suppress for errors of law. State v. Middleton, 294 

Or App 596, 597, 432 P3d 337 (2018). We are bound by the 

trial court’s findings of fact if they are supported by evidence in the record. Id.

It is well-established that a forensic blood draw is 

governed by search and seizure principles. State v. Kelly, 

305 Or App 493, 496, 469 P3d 851 (2020). A warrantless 

search or seizure is per se unreasonable unless it falls under 

an exception to the warrant requirement, such as exigent 

circumstances. Id. Ordinarily, a warrantless blood draw is 

permitted when an individual has been legally seized for 

DUII, due to the exigent circumstances of dissipation of 

alcohol from the human body. Id. at 497. However, we have 

recognized that, in some rare circumstances, that exigency 

will not be present, and the state bears the burden of proving that an exigency existed. Id. at 498-99.

In order to meet its burden of establishing that a 

blood draw was justified by exigent circumstances, the state 

must demonstrate that an officer’s subjective belief—that 

exigent circumstances existed and thus the forensic draw 

was needed to adequately preserve evidence of BAC—was 

objectively reasonable based on the officer’s “contemporaneous perspective based on information known or reasonably 
Cite as 328 Or App 328 (2023) 337

discernible in the totality of the circumstances[.]” State v. 

Martinez-Alvarez, 245 Or App 369, 376, 263 P3d 1091 (2011).

While defendant’s pretrial motions were pending, 

we decided State v. Kelly, which involved an investigator 

obtaining a forensic blood sample when a medical blood 

draw and testing had already been performed. 305 Or App 

at 495. In that case, the hospital had already drawn the 

defendant’s blood and performed blood-alcohol analysis on 

it and informed the investigating officer that BAC results 

were available. Id. The officer asked the hospital staff not to 

tell him the results, and requested a forensic draw be performed. Id. The officer testified at a pretrial hearing that he 

did not attempt to get a warrant first because it would have 

taken several hours. Id. He subsequently obtained a warrant to have the blood tested. Id. The defendant challenged 

the admissibility of the forensic draw, and we concluded that 

the state had not met its burden to establish that a second 

blood draw was justified by exigent circumstances. Id. at 

501. Though the state argued on appeal that medical and 

forensic draws have different levels of reliability and evidentiary value, we noted that the state did not offer evidence 

before the trial court on those issues. The record contained 

no evidence that an objectively reasonable officer in that 

investigator’s position would have been concerned that the 

medical blood draw or test results, which were available in 

the moment, would not be reliable or available as evidence 

at trial and the state did not offer evidence of any evidentiary problems with a medical draw, such as how the draws 

might differ scientifically or any issues with foundation for 

the medical draw. Id. at 501.

In the present matter, the trial court found that 

this case was factually distinguishable from Kelly in some 

important ways, particularly with respect to the development of the record as to the officer’s subjective reasoning in 

seeking the forensic sample and the objective differences in 

testing, preservation, and handling of the samples for medical versus forensic purposes. The court concluded that the 

state had satisfied its burden of proving that an exigency 

existed.
338 State v. McIntire

On appeal, defendant argues that exigent circumstances did not justify the warrantless forensic blood draw. 

Analogizing to Kelly, he asserts that the medical draw 

would have been sufficient to preserve the BAC evidence 

and that the state failed to meet its burden to show that the 

officer reasonably believed that the medical draw would not 

be reliable or admissible.3

 The state argues that this case is 

distinguishable from Kelly, both factually and in terms of 

record development, and that the trial court therefore did 

not err in concluding that the circumstances did not warrant suppression.

We conclude that the trial court did not err by 

denying defendant’s motion to suppress. As noted above, 

we review the trial court’s denial of the motion to suppress 

for errors of law, but we are bound by the trial court’s findings of fact if they are supported by evidence in the record. 

Middleton, 294 Or App at 597. The trial court made factual 

findings regarding the officer’s reasons for believing that the 

exigent draw was required as opposed to relying on the hospital draw, including concerns about chain of custody, protocols for preservation, and security of the samples; assurances that the proper testing would be done on the forensic 

samples and lack of knowledge about what testing would 

be performed on the medical samples; knowledge that the 

forensic draw would be performed following a swab of defendant’s arm with iodine rather than alcohol; knowledge about 

what preservatives or other additives would be included in 

the forensic samples; and the importance of preservation of 

forensic samples for the possibility of replication of testing if 

needed. The court further noted that at the time the forensic 

draw was performed, no testing had been done on the medical samples, unlike in Kelly. Additionally, a forensic expert 

testified that the variation in results from the crime lab’s 

testing of the leftover medical sample when compared to the 

hospital’s testing of the same sample was due to the lack of 

preservatives in the vial.

3 We understand defendant to contend that the state failed to meet its burden to prove exigent circumstances because the state failed to demonstrate that 

the medical blood draw was insufficient and a separate warrantless forensic 

blood draw was therefore needed. We do not understand defendant to contend 

that the state could have obtained a warrant for a blood draw in time to obviate 

the exigent circumstances due to the dissipating BAC in defendant’s blood.
Cite as 328 Or App 328 (2023) 339

All of the trial court’s factual findings are supported 

by evidence in the record. The facts developed at multiple 

hearings demonstrate that the officer’s subjective belief that 

a forensic draw was needed to adequately preserve the BAC 

evidence was objectively reasonable, in light of the totality 

of the circumstances. Therefore, the state met its burden of 

demonstrating that exigent circumstances existed to justify 

the warrantless blood draw. The trial court did not err in 

denying defendant’s motion to suppress.

Affirmed.