Filed: May 10, 2012

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON Respondent on Review,

v.

JAVIER EUMANA

- MORANCHEL, Petitioner on Review.

(CC 081053188; CA A142632; SC S059602)

En Banc
On review from the Court of Appeals.*
Argued and submitted January 9, 2012.
Erik Blumenthal, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, C hief Defender, Office of Public Defense Services.
Matthew J. Lysne, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicit or General.

BALMER, C. J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

De Muniz, J., filed a dissenting opinion in which Durham and Walters , J J ., joined.
*Appeal from Multnomah County Circuit Court, Lewis B. Lawrence, Judge. 243 Or App 496, 260 P3d 501 (2011).BALMER, C. J. 1

This case arises out of defendant's motion in limine to exclude the 2
testimony of the state's expert witness in his prosecution for driving under the influence 3

of intoxicants (DUII)

. The issue presented is whether the state can introduce an expert's 4

testim ony to prove that defendant's blood alcohol content (BAC) was over the legal limit 5
of .08 percent when a police officer stopped him for driving erratically, even though 6
defendant's BAC was under the legal limit at the time of his breath test
, approximately an 7

hour and a half later

. At the pretrial hearing on defendant's motion , the trial court 8

excluded the expert's testimony interpreting defendant's breath test results to the extent 9
that that testimony would explain that defendant's BAC was over .08 percen t at the time 10

he was driving. The state filed an inter locutory appeal of that ruling and the Court of 11
Appeals reversed, concluding that the expert's testimony was derived from a chemical 12
analysis of defendant's breath and was, therefore, admissible. State v. Eumana

13

Moranchel , 243 Or App 496, 260 P3d 501 (2011). We now affirm the decision of the 14
Court of Appeals. 15
The parties stipulated to the following facts for purposes of the hearing on 16

defendant's motion in limine

. On September 27, 2008, at 3:08 a

. m

. , a police officer 17
stopped defendant on a public road in Multnomah County after the officer observed 18
defendant's pickup truck weaving across the center line. The officer noticed that 19
defendant's eyes were glassy and that his movements were slow and lethar gic. Defendant 20

told the officer that he had had three beers that evening, but had had no alcohol since 2:00 21

a.m., when the bars closed. A second officer arrived on the scene. She noted the smell of 222

alcohol emanating from defendant's truck. She administ ered field sobriety tests, which 1

defendant failed. The officer arrested defendant for DUII, advised him of his Miranda 2
rights, and transported him to the police station. At 4: 42 a.m., the officer administered a 3

breath test that measured defendant's BAC a t .06 4 percent, which was below the legal 4
limit of .08 percent. 1 5
Defendant was charged by information with "misdemeanor driving while 6

under the influence of intoxicants." The offense of driving under the influence of 7

intoxicants is defined in ORS 813. 010 (1), which provides : 8
"A person commits the offense of driving while under the influence 9 of intoxicants if the person drives a vehicle while the person: 10
"(a) Has 0.08 percent or more by weight of alcohol in the blood of 11 the person as shown by chemica l analysis of the breath or blood of the 12 person made under ORS 813.100, 813.140 or 813.150; 13
"(b) Is under the influence of intoxicating liquor, a controlled 14 substance or an inhalant; or 15
"(c) Is under the influence of any combination of intoxicating liquo r, 16 an inhalant and a controlled substance." 17

Th e information did not identify a particular paragraph of ORS 813.010 18
that the state accused defendant of violating. The state, thus, was free to establish at trial 19

that defendant violated ORS 813.010 either by driving while impaired, under ORS 20
813.010(1)(b) or (c), or by driving with a BAC of at least .08 percent, under ORS 21

1 The officer first administered a breath test at approximately 4:30 a.m. that

m easured de fendant's BAC at .064 percent. The parties and the expert have relied on the second, 4:42 a.m. breath test result in this ca se and we do the same in this opinion.3

813.010(1)(a). See State v. King , 316 Or 437, 446, 852 P2d 190 (1993), overruled in part 1
on other grounds by Farmers Ins. Co. v. Mowry , 350 Or 686, 697, 261 P3d 1 (2011) 2

(ORS 813.010(1)(a), (b)
, and (c) describe single offense, and jury need not agree on 3

which test results (B AC or field sobriety tests or combina tion) established that the driver 4

was under the influence). 5

Before trial, t he state indicated that it intended to offer an expert's 6
testimony to establish defendant's guilt under ORS 813.010(1)(a)

-- to prove that 7
defendant drove with a BAC of .08 perc ent

-- notwithstanding that his BAC at the time of 8

the test was below that legal limit. As noted, defendant moved in limine to exclude that 9
testimony. 10

At the hearing on the motion in limine , the prosecution proffered the 11
testimony of Shane Bessett, an expert in the field of alcohol absorption and dissipation , to 12
establish that, although defendant's BAC at the time of his breath test was .064 percent, 13

his BAC when he was stopped , one hour and 34 minutes earlier, was between .08 and .10 14

percent and, ther efore, above the legal limit

. Bessett testified that he had arrived at that 15
range by using a method called retrograde extrapolation , which he explained as follows: 16
Bessett testified that men and women eliminate alcohol at an average rate of .018 percent 17
per hour, 2 but that the specific elimination rate for any particular individual var ies 18
according to his or her tolerance for alcohol. The least alcohol

- tolerant drinker would 19

2 Bessett testified that men and women eliminate alcohol at the same rates.4

eliminate alcohol at a rate of .01 percent per hour, while the most tolerant dri nker would 1
eliminate alcohol at a rate of up to .025 percent per hour. 3 For that reason, Besset t 2

testified , retrograde extrapolation would produce a range for a driver's BAC at any given 3

time, rather than a single, specific number. Further, Bessett testi fied, to calculate a 4
person's BAC at a given time, he would need to know the time of the test, the time of the 5
driver's last consumption of alcohol, and the time that the driv er was stopped. 6

Bessett testified that , in this case, based on information in the police 7

reports, he assumed that de fendant had stopped drinking by 2:00 a.m., that he was 8
stopped and arrested at 3:08 a.m. , and that the breath test at 4:42 a.m. revealed that his 9

BAC was .064 percent

. 4 B ased on those assumptions, Bessett then calculated that 10

defendant , having eliminated the alcohol in his blood at a rate of between .01 and .025 11

percent per hour for one hour and 34 minutes, likely would have had a BAC of between 12

.08 and .1 0 percent when he was driving. 13
The trial court granted defendant's motion to exclude Bessett's testimony. 14

3 Because those parameters would encompass "virtually everyone," which he described as 98 out of 100 people tested, Bessett testified that there was no margin of

error.

4 Bessett testified that it was important to know when a subject stopped drinking, because 80 percent of alcohol is absorbed into the bloodstream within five to 10 minutes of consumption, and all alcohol consumed ord inarily is absorbed into the bloodstream within 30 to 60 minutes. In this case, Bessett assumed that, when defendant was stopped at 3:08 a.m., one hour and eight minutes after defendant stopped drinking, defendant would have been eliminating alcohol, not absorbing it. Defendant did not challenge that assumption.5

In reaching that result, the court concluded that it was bound by the Court of Appeals 1
opinion in Sta te v. Johnson , 219 Or App 200, 182 P3d 256 (2008), which, in its view, 2
prevented the state from convicting a defendant for DUII unless a chemical analysis, 3
standing alone, proved the defendant's BAC to be at least .08 percent

. 5 The trial court 4

entered an order excluding 5
"(1) Any testimony by S tate's expert witness referring to BAC 6 content if that testimony would permit the jury to convict defendant based 7 on his BAC. 8
"(2) Any testimony by S tate's expert witness that his BAC at the 9 time o f t he alleged st op was at least .08 percent." 10

Th at ruling effectively prevented the state from establishing defendant's guilt under ORS 11

813.010(1)(a). 12
The state appealed that pretrial ruling, and the Court of Appeals reversed, 13
concluding that Besset t 's testimony concerning retrograde extrapolation was admissible, 14
because it "was derived, using scientific principles, from a chemical analysis of 15

defendant's breath." Eumana

- Moranchel , 243 Or App at 502. 16

In this court, d efendant argues that ORS 813.010 provides three methods 17
for the state to prove that a defendant was driving under the influence of intoxicants. 18

5 In Johnson , a breath test revealed that the defendant's BAC was .07 percent at the time of the test, approximately an hour after the defendant was stopped. At the defendant's trial in that case, the arresting officer testified that, based on his observations, the defendant 's BAC was at or above .08 percent at the time he was stop ped . The Court of Appeals accepted the state's concession that evidence of observable indicia of intoxication is not admissible to prove that a defendant's BAC exceeded the legal limit, because it is not based on a chemical test of the defendant's breath or blood. 219 Or App at 204

- 05.6

Two of those methods, set out in ORS 813.010(1)(b) and (c), require proof that the 1

defendant drove while impaired by alcohol or controlled subs tances. The third, set out in 2

ORS 813.010 (1)(a), does not require proof of impairment. Rather, that paragraph 3
requires only that the state prove that the defendant drove with a BAC of .08 percent or 4

more " as shown by chemical analysis of the breath or bl ood of the person ." (Emphasis 5

added.) Defendant argues that
, un der the plain words of ORS 813.010(1)(a), only a 6
chemical analysis can show a BAC of .08 percent or more. R etrograde extrapolation is a 7

formula , not a chemical analysis
, defendant asserts, a nd, therefore, it cannot be used to 8
show a particular BAC. He contends that only the numerical result of the 9

chemical <fj analysis (the breath test result) is admissible to show that h e drove a vehicle 10

while he had .08 percent or more by weight of alcohol in his blood. According to 11
defendant, any other evidence is irrelevant for that purpose. 12
We begin our analysis by examining the words of the statute. For 13
convenience, we repeat them here: 14
"(1) A person commits the offense of driving while under the 15 influence of intoxicants if the person drives a vehicle while the person: 16
"(a) Has 0.08 percent or more by weight of alcohol in the blood of 17 the person as shown by chemical analysis of the breath or blood of the 18 person made under ORS 813.100, 813.140 or 8 13.150 ; 19
"(b) Is under the influence of intoxicating liquor, a controlled 20 substance or an inhalant; or 21
"(c) Is under the influence of any combination of intoxicating liquor, 22 an inhalant and a controlled substance." 23

We first observe that ORS 813.010 (1) p rohibits driving under the influence 24

of intoxicants : "A person commits the offense of driving while under the influence of 257

intoxicants if the person d rives a vehicle while the person " is under the influence. 1
(Emphasis added.) As this court stated in S t ate v. Clark , 286 O r 33, 38, 593 P2d 123 2

(1979) , quoting State v. Clark , 35 Or App 851, 856, 583 P2d 1142 (1978)
, 3

" ' [t] he gravamen of [the predecessor statute to ORS 813.010] is driving 4 with a certain blood alcohol level. The legislature has seen fit to forbid this 5 act, without more. ' " 6
Thus, the focus of the statute is on the act of driving, and doing so while impaired. 7

T he statute then sets out two ways to prove that a person drove while under 8

the influence of intoxicants : The state can establish that the defendant's BAC was .08 9

percent or more , ORS 813.010(1)(a), regardless of observable symptoms, o r the state can 10

prove that the person was "under the influence of intoxicating liquor, a controlled 11

substance, or an inhalan t, " that is, that the defendant was adversely affected by 12

intoxicants to a perceptible degree
, ORS 813.010(1)(b), (c). See King , 316 Or at 446 13
("The legislature did intend that a person could commit [the offense of DUII] by driving 14
with the specified BAC but with no perceptible impairment or by driving with a legally 15
permissible or unknown BAC but while nonetheless perceptibly impaired [

. ] "); Clark , 286 16
Or at 39 (in making it an offense to drive with a certain BAC, "the legislature apparently 17

assumed, based on scientific studies and medical knowledge, that the physical and mental 18
condition of a driver with such a level of blood alcohol is impaired to such a degree as to 19
make it unsafe for him to drive a motor vehicle, regardless of observable physical 20

sympto ms"). Under either scenario , the state must prove that the driver had the 218

proscribed BAC or was perceptibly impaired at the time that he or she was driving

. 6 1

ORS 813.010(1)(a), (b), and (c) ( a person commits the offense of DUII "if the person 2

drives a ve hicle while the person " has a BAC of 0.08 percent or more or was impaired). 3

This case requires us to consider how the state may prove that defendant 4

violat ed ORS 813.010(1)(a)

. Under that statute, BAC at the time of driving must be 5

" shown by chemical analysis of the breath or blood

. " (Emphasis added.) However, i t is 6

6 In contrast, many other states explicitly require proof of a chemical test result over the legal limit at the time of the test or within a certain period of time after driving. See
, e.g. , Alaska: Alaska Stat § 28.35.030 (2) (offense committed if driver has .08 percent BAC within four hours of driving); Arizona: Ariz R ev Stat § 28

- 1381(2) (offense committed if driver has .08 percent BAC within two hours of driving) ; California: Cal Veh Code § 23152(b) (rebuttable presump tion of guilt if driver has .08 percent BAC at time of test w ithin three hours of driving ); Delaware: Del Code § 4177(5) (offense committed if driver has .08 percent BAC or more within four hours of driving , " without regard to the person's alcohol concent ration at the time of driving " ) ; Kansa s : Kan Stat Ann § 8

- 1567(2) ( offense committed if driver has .08 percent BAC within three hours of driving) ; Kentucky: Ky Rev Stat Ann § 189A.010(1)(a) (offense committed if driver has .08 percent BAC at time of test within two hours of driving) ; Minnesota: Minn Stat § 169A.20 , subd.1 (5) (offense committed if driver has .08 percent BAC as measured within two hours of driving) ; Montana: Mont Code Ann § 61

- 8

- 401(4) (c) ( rebuttable inference of guilt if driver has .08 percent BAC at time of test); Nevada: Nev R ev S tat § 484C.110(1)(c) (offense committed if driver has .08 percent BAC within two hours of driving) ; New Mexico: NM Stat A nn § 66

- 8

- 102(C )(1) (offense committed if driver has .08 p ercent BAC within three hours of driving) ; North Dakota: ND Cent Code § 39

- 08

- 01(1)(a) (offense committed if driver has .08 percent BAC at time of test within two hours of driving) ; Oklahoma: Okla Stat § 47

- 11

- 902v (A)(1) (offense committed if driver has .08 percent BAC within two hours of driving) ; Pennsylvania: P a Cons S tat § 3802(a)(2) (offense committed if driver has .08 percent BAC within two hours of driving ); Utah: Utah Code Ann § 41

- 6a

- 502(1)(a) and (c) (offense committed if driver has .08 perce nt BAC at the time of the test or a t the time of operating vehicle); Washington: RCW § 46.61.502(1)(a) (offense committed if driver has .08 percent BAC within two hours of driving ) ; Wyoming : Wyo Stat Ann § 31

- 5

- 233(b) (ii) (offense committed if driver ha s .08 percent BAC at time of driving or within two hours of driving ).9

virtually always the case that the chemical test of the breath or blood is administered 1

some time after the person has stopped driving. That is so for several reasons. Firs t, a 2
breath test may not be administered until after the driver actually has been arrested for 3
DUII. ORS 813.100(1) ("Any person who operates a motor vehicle * * * shall be 4
deemed to have given consent * * * to a chemical test of the person's breath * * * for the 5
purpose of determining the alcoholic content of the person's blood if the person is 6
arrested for driving a motor vehicle while under the influence of intoxicants in violation 7

of ORS 813.010[.]"). I n all cases, a certain amount of time will have passed after the stop 8
and before the arrest, while a police officer investigates the crime. In addition, to test the 9
driver, the police officer must use a specific machine, the Intoxilyzer 5000 or the 10
Intoxilyzer 8000, which are the only breath test machi nes approved by the Oregon State 11
Police for use in performing a chemical analysis of a person's breath, OAR 257

- 030

- 12

0060; OAR 277

- 030

- 0120 (so stating), and which typically are located at the police 13
station. Finally, before administering the test, the pol ice officer must inform the person 14
of the consequences of refusing to take a breath test, ORS 813.100(1)(a), and then wait at 15
least 15 minutes to be certain that the person has not taken anything by mouth, vomited, 16
or regurgitated. OAR 257

- 030

- 0070(2)(a) (Intoxilyzer 5000); OAR 257

- 030

- 0130(2)(a) 17
(Intoxilyzer 8000). 18
Importantly, a person's BAC changes during the time between being 19
stopped and undergoing a breath test. Bessett testified at the hearing on defendant's 20

motion in limine that 80 percent of consumed alcohol enters the blood within five to 10 21

minutes
, and 100 per cent enters the blood within 30 to 60 minutes. Moreover, as 2210

discussed above, alcohol is eliminated from the blood at a rate between .01 and .025 1
percent per hour. It follows that a c hemical test result alone never "show s " the actual 2
BAC of the driver at the time of driving

. 3

S omething more is necessary to connect the breath test result to the 4
statutory requirement of a BAC of .08 percent or more at the time of driving. This court 5
has suggested that, w hen a breath test taken after the time of driving establishes a BAC of 6

.08 percent or higher, the trier of fact reasonably may infer the necessary connection. 7

That is, the jury may infer that the driver's BAC while driving was at leas t as high as the 8

later test result

. See State v. Parker , 317 Or 225, 232 n 9, 855 P2d 636 (1993) ( stating, in 9

dict um , that, in case where the defendant had a BAC of .07 percent five hours after 10
driving, the state did not need to call an expert on the diss ipation of blood alcohol 11

content , because the fact that blood alcohol dissipate s over time is common knowledge )

. 12

In this case, defendant's breath test established a BAC at the time of the test of less than 13
the legal limit, at

. 0 64 percent. The question here , then, is whether , in that circumstance, 14

the state may attempt to connect the breath test result to the statutory requirement of .08 15

percent BAC or more while driving with evidence that is not necessarily common 16
knowledge : the precise rate of dissipation. 17

We conclude that the answer is yes. As just discussed, ORS 813.010(1)(a) 18
provides that a person commits the offense of driving under the influence of intoxicants 19
if, while driving, the person " has 0 .08 percent or more by weight of alco hol in the blood * 20

* * as shown by chemical analysis of the breath or blood [

. ] " Because a breath test result 21
will never "show" a person's BAC at the exact time of driving, the state must be able to 2211

offer relevant evidence to explain how a driver's BAC at the ti me of the test "shows" that 1

he or she had .08 percent or more by weight of alcohol in the blood stream at that earlier 2
point. That is true whether the driver's BAC was exactly .08 percent, more than .08 3
percent, or less than .08 percent. And a n expe rt's testimony explaining retrograde 4
extrapolation, which uses a person's BAC at the time of the test to establish, based on a 5

scientific formula, that the person ' s BAC was above the legal limit at a certain earlier 6

time, is relevant and admissible for that purpose. OEC 401 (evidence is relevant if it 7
makes any fact of consequence to the determination of the action more probable); OEC 8
402 (all relevant evidence is admissible unless otherwise provided). 9

Defendant nevertheless argues that , under ORS 813.010, a chemical 10
analysis, and only a chemical analysis
, can "show" that a person drove while over the 11
legal limit. However, a s this court stated in Clark
, if the legislature had intended for the 12
numerical breath test result to be the only evidence ad missible under former ORS 13
487.540(1)(a), the predecessor statute to ORS 813.010(1)(a), it would have worded the 14

statute to make that limitation clear

. 7 286 Or at 44

- 45

. The court went on: 15

"[T] he more reasonable reading of the statute is that the driver must be 16 found in fact to have .10 percent blood alcohol [the legal limit at that time] 17

a nd that this must be shown by a chemical analysis. In other words, the 18 state cannot establish a violation of [ former ] ORS 487.540(1)(a) without a 19 chemical analysis properly performed, but the analysis must ' show ' the 20 actual presence of that percentage in the blood, not mere ly in the instrument 21 reading." 22

7 And, as discussed above, at note 6, the DUII statutes of many other states clearly specify that the operative BAC is the driver's BAC at the time of the test.12

Id . at 45 (emphasis in original)

. 1

The court in Clark addressed a som ewhat different question than is 2
presented here: whether a defendant was entitled to offer evidence, such as the testimony 3

of non expert witnesses relating to defendant's observable conduct, to impeach the 4
accuracy of the result of a chemical analysis

. No netheless, we think that the court's 5
reasoning in Clark is equally applicable in this case , where the state is the party seeking 6
to offer additional evidence to explain the results of the chemical analysis. As the court 7

stated in Clark , t he statute requir es the chemical analysis to "show" the actual presence of 8
the alcohol in the blood at the time of driving; it does not merely require a certain 9
instrument reading. That is, under the statute, the "chemical analysis" is the numerical 10

result that the machin e produces together with an explanation of that result. That 11
explanation can be simply an inference that blood alcohol rates dissipate over time, or, as 12
in this case, an expert's testimony explaining that retrograde extrapolation shows the 13
actual presence of the prohibited percentage of alcohol in a driver's blood when he or she 14

was driving. 15

Defendant contends , on the contrary, that this court, in State v. O'Key , 321 16
Or 285, 899 P2d 663 (1995), held that a chemical analysis is the "only" manner of 17
proving intoxication under ORS 813.010(1)(a). Defendant is incorrect. In O'Key , this 18
court held that evidence that the defendant failed a field sobriety test

-- the horizontal 19

gaze nystagmus test

-- was not admissible under ORS 813.010(1)(a) to prove that the 20
defendant, who had refused to take a breath test, drove with a BAC of .08 percent or 21

more. The court held that 2213

"the offense of DUII with a .08 percent or more B AC may be proved only 1 by a ' chemical analysis of the breath or blood of the person [.] ' * * * An 2 HGN test does not involve a chemical analysis of breath or blood. Hence, 3 an HGN test is not a chemical test under ORS 813.010(1)(a). Under ORS 4 813.010(1)(a ), HGN test evidence is not, therefore, admissible to prove that 5 a person had a BAC of .08 percent or more." 6
321 Or at 308 (emphasis in original). It is, of course, true that an expert's testimony 7
explaining retrograde extrapolation also is not a "chemi cal test." However, defendant 8
does not dispute that the state intends to offer a chemical test

-- defendant's breath test 9

result

-- showing that defendant had a BAC of .064 percent at the time of the test, to 10
prove that defendant drove while having a BAC of .08 percent or more. Moreover, as the 11
Court of Appeals held below
, Eumana

- Moranchel , 243 Or App at 450, and as we have 12
explained , the expert's retrograde extrapolation analysis is based on and derived from that 13

chemical test . Thus, much as the observable conduct testimony in Clark explained that 14

the chemical test result did not "show" that the defendant drove with the prohibited BAC, 15

here
, the retrograde extrapolation analysis
, applied to the chemical test result, explains 16

that the chemical test "shows" that defendant drove with a BAC of .08 percent or more. 17

C ontext support s o ur conclusion that the legislature did not intend to 18
prohibit the state from introduc ing evidence , based on the breath test result, that a 19
person's BAC was over the legal limit at the time of driving. First, i n ORS 813.100, 20
Oregon's implied consent statute, the legislature expressly imposes various administrative 21
penalties on a driver whose BAC is over the legal limit at the time of the test . ORS 22

813.100 provides , in part : 23

" (3) If a person refuses to take a te st under this section or if a breath 24 test under this section discloses that the person, at the time of the test, had 2514

a level of alcohol in the person's blood that constitutes being under the 1 influence of intoxicating liquor under ORS 813.300 [providing tha t a BAC 2 of .08 percent or more constitutes being under the influence of intoxicating 3 liquor] , the person's driving privileges are subject to suspension under ORS 4 813.410 and the police officer shall [take certain enumerated actions.] 5

" (4) If a blood test under this section discloses that the person, at the 6 time of the test , had a level of alcohol in the person's blood that constitutes 7 being under the influence of intoxicating liquor under ORS 813.300, the 8 person's driving privileges are subject to suspens ion under ORS 813.410 9 and the police officer shall report to the department within 45 days of the 10 date of arrest that th e person failed the blood test." 11
(Emphasis added.) Th e legislature's specificity in pointing to the time of the test in th ose 12

statute s suggests that, had the legislature inte nded the trier of fact to consider only a 13
person's BAC at the time of the breath test in determining whether a person has 14

committed the offense of driving while under the influence of intoxicants under ORS 15

813.010(1)( a)
, it could have done so by inserting the words "at the time of the test" in to 16

ORS 813.010(1)(a). 8 17

Second, ORS 813.300(1), which deals with the use of BAC as evidence, 18

also is consistent with our conclusion that evidence helping to explain that a person 's 19
BAC was over the legal limit while he or she was driving is admissible under ORS 20
813.010(1)(a). That statute provides: 21
"At the trial of any civil or criminal action, suit or proceeding arising out of 22 the acts committed by a person driving a motor veh icle while under the 23 influence of intoxicants, if the amount of alcohol in the person's blood at 24 the time alleged is less than 0.08 percent by weight of alcohol as shown by 25 chemical analysis of the person's breath or blood, it is indirect evidence that 26

8 Those words are not found in ORS 813.010(1)(a) and we are, of course, admonished "not to insert what has been omitted." ORS 174.010.15

may be used with other evidence, if any, to determine whether or not the 1 person was then under the influence of into xicants." 2
(Emphasis added.) That statute describes the use of evidence at trial in a case " arising out 3
of the acts committed by a person driving a motor vehicle while und er the influence of 4
intoxicants," including, as relevant here, a prosecution for DUII . Under that statute, if a 5
person's BAC "at the time alleged" is less than .08 percent as shown by a chemical 6
analysis of the person's breath or blood, it is indirect evidence that may be used with 7
other evidence to prove that the person was under the inf luence of intoxicants. Because 8

the " gravamen of [ ORS 813.010] is driving with a certain blood alcohol level
, " Clark
, 9

286 Or at 38, the reference in ORS 813.300(1) to " the amount of alcohol in the person's 10

blood at t he time alleged " (emphasis added) is a r eference to BAC at the time of driving. 11
However, as we already have explained, the "chemical analysis of the person's breath"

-- 12

the breath test

-- does not prove the amount o f alcohol in the person's blood at the time of 13
driving. Retrograde extrapolatio n is the mechanism by which the amount of alcohol in a 14
person's blood at the time alleged is "shown" to be more or less than 0.08 percent

. 9 It 15
provides the necessary connection between evidence of a person's BAC at the time of the 16

test and his or her BAC while driving. 10 17

9 And it follows that, if retrograde extrapolation shows that a person's BAC at the time of driving was less than .08 percent, then, under ORS 813.300(1), the driver's BAC still is admissible as indirect evidence that may be used with other evidence to prove that the driver was under the influence of intoxicants

.

10 Both defendant and the state contend that leg islative history supports their respective positions. However, neither party has pointed to any legislative history16 We hold that the state should have been permitted to offer the expert's 1
testimony explaining retrograde extrapolation to establish that defendant's BAC was over 2
.08 percent at the time he was driving

. 3

The decision of the Court of Appeals is affirmed. The judgment of the 4

circuit court is reversed, and the case is remanded to the circuit court for further 5
proceedings. 6

showing that the legislature actually considered whether expert testimony explaining to the jury the relationship between a BAC test result and a defendant's BAC some time earlier, at the time of driving, would be admissible. Nor has either party identified any legislative history suggesting that the legislature intended that the state's ability to convict a driver under ORS 813.010(1)(a) wo uld depend only on the driver's BAC at the time of the test. In short, nothing in the legislative history suggests that the legislature had any express intention to require the state to prove BAC only with the numerical result of a breath test taken at so me point after the person stopped driving.1 DE MUNIZ, J., dissenting. 1
Although the only chemical analysis conducted in this case sh owed a blood 2
alcohol content (BAC) of .064 percent, the majority opinion goes to great lengths to 3
avoid the plain meaning of the term "chemical analysis" in ORS 813.010(1)(a) in order to 4
permit the state to use retrograde extrapolation to prove that defend ant drove while his 5
BAC was over .08 percent. Because I conclude that the legislature enacted ORS 6
813.010(1)(a) as a bright

- line rule intended to include only those persons who actually 7
register a BAC of .08 percent or greater on a chemical test, I respec tfully dissent. 8
When prosecuting a DUII, the state ordinarily may proceed under either 9
paragraph (a) or (b) of ORS 813.010(1) (or both, in the alternative)

-- that is, the state 10
may convict the defendant by proving either that the defendant drove with a BAC of .08 11
percent or more "as shown by chemical analysis," or that the defendant was "under the 12
influence of intoxicating liquor." However, because of the limited procedural posture of 13
this case, we consider the use of retrograde extrapolation only as it applies to paragraph 14
(a) of ORS 813.010(1). Nothing in this opinion affects the use of that evidence under 15
paragraph (b), as evidence of actual impairment at the time of driving. As a practical 16
matter, then, the only case in which the state would requ ire that evidence to secure a 17
conviction is when a person both has a BAC lower than .08 percent when tested and has 18
exhibited no outward signs of impairment sufficient to convict under paragraph (b). The 19
majority holds that, in that situation, the statute permits the state to convict on the basis of 20
expert testimony extrapolating from the results of a chemical analysis by factoring in 21
additional, nonchemical evidence regarding mathematical formulas, average dissipation 222

rates, 1 and the time defendant last c onsumed alcohol and last drove, in direct 1
contradiction to the statute's directive that BAC may be proved only "by chemical 2
analysis." In my view, the more logical explanation is that the legislature simply 3
intended for a person in that position to be acq uitted. As I discuss in more detail below, 4
both the structure of the statute and the plain meaning of its text requiring the requisite 5
minimum BAC to be "shown by chemical analysis" support that conclusion. 6
As I interpret it, the structure of the stat ute indicates that there is only one 7

crime

-- driving under the influence of intoxicants

-- for which the legislature has 8
provided two methods of proof. The first method of proof is to secure a chemical 9
analysis showing a BAC above .08 percent. The secon d method of proof is to prove 10
beyond a reasonable doubt that the defendant's driving was actually impaired by the 11
consumption of alcohol. By contrast, the majority's interpretation has created an 12
additional crime of driving with a BAC above .08 percent, t he elements of which the state 13

1 The mathematical formulas used in the kind of retrograde extrapolation performed in this case were not specifically tailored to the defendant, but were derived from studies of average alcohol dissipation rate s across a broad population. As the state's expert admitted, those rates can vary widely from person to person, preventing the analysis from determining what defendant's specific BAC was at the time of driving. Rather, the tests can return only a "range" of possible results, which, as the state's expert testified, will be accurate for only 98 out of 100 people. __ Or at __ n 3 (slip op at 4 n 3). In my view, using those averages and calculations that are not specific to defendant's particular physiology and circumstances directly contravenes the statutory text that the subject of the "chemical analysis" must be the breath or blood of the defendant . ORS 813.010(1)(a).3

may establish by whatever means it pleases. 2 After today, the state need not be bothered 1
to try to prove that any defendant's driving was actually impaired (the actual wrongful 2
conduct intended to be punished), unless the de fendant's BAC, when tested, was so low 3
that by no possible "range" of extrapolation could the defendant's BAC ever have 4
exceeded .08 percent. 5
Because the first method of proof provided in paragraph (a) is a type of 6
evidentiary presumption

-- a means b y which the state is permitted to prove the 7

commission of the offense without proving the actual underlying wrongful conduct

-- it 8
would make sense for the legislature to limit the means of establishing that presumption 9
to a method erring slightly on the s ide of under inclusivity. By limiting the use of 10
paragraph (a) to those defendants who manifest a .08 percent BAC or higher at the time 11
of the test, paragraph (a) of the statute is under inclusive as to those persons who may 12
have been at or slightly over .08 percent BAC at the time of driving, but whose BAC has 13
dissipated to below .08 percent by the time of the test. However, the state may still opt to 14

2 It is no defense to the majority's position that the retrograde extrapolation anal ysis is "based" on a chemical analysis. There is no way to arrive at any known percentage of blood alcohol content

-- as the statute requires

-- without some reference to a chemical analysis. The inclusion of the additional requirement in the statute tha t the .08 percent must be " shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150 " is better understood not as redundant to that obvious truth but rather as limiting the universe of methods by which the s tate is permitted to prove the defendant's precise blood alcohol content. That limitation necessarily implies that there are other ways to prove that defendant's blood contained .08 percent alcohol at the time of driving; however, only those ways expressl y listed are admissible to satisfy the evidentiary presumption provided by paragraph (a).4

prosecute those defendants under paragraph (b) by proving that their driving was actually 1
impaired. Ind eed, the state may still introduce its retrograde extrapolation evidence to 2
demonstrate how much higher the defendant's BAC likely was at the time of the crime, in 3
conjunction with any other evidence tending to prove impairment. That interpretation of 4

the statute, in which paragraph (a) may be used to establish a presumption of impairment 5

in the most clear

- cut cases, while paragraph (b) is used to ensure that in borderline cases 6
wrongful conduct is established beyond a reasonable doubt, reliably encompasse s the 7
harm sought to be proscribed while adequately balancing the interests of both defendants 8

and the state. 9
On the other hand, if, as the majority holds, retrograde extrapolation 10
standing alone is sufficient to establish a violation of the statute, the statute risks over 11
inclusivity, because there is no limit to how far the state may extrapolate to secure a 12
conviction. The majority's interpretation would permit the state to prove through 13
retrograde extrapolation not only that a person with a .07 percen t BAC was over .08 14
percent one hour earlier, but also that a person with a .01 percent BAC was over .08 15
percent eight hours earlier. The scientific principles supporting retrograde extrapolation 16
have not advanced to such a state today

-- and certainly had not in 1975 when the 17
legislature first enacted this statute

-- to permit such a conviction beyond a reasonable 18
doubt. Indeed, in 1975, a first offense for driving under the influence of intoxicants was 19
a mere traffic infraction, punishable by fine only, not to exceed $1,000. See former ORS 20

487.540(2) (1975), repealed by Or Laws 1983, ch 338, § 978 (providing that "[d]riving 21

while under the influence of intoxicants is a Class A traffic infraction"); former ORS 225

484.360(1), (2) (1975), repealed by Or Laws 1 983, ch 338, § 978 (providing that "the 1
penalty for committing a traffic infraction shall be a fine only," which, for Class A traffic 2
infractions, may not exceed $1,000). It can hardly be contended that in that context the 3
1975 legislature could have envi sioned a battle of competing scientific expert witnesses 4

at a full

- blown criminal trial testifying with regard to science that, if it existed at all, was 5
in its very nascence. That the legislature intended to create a simple, bright

- line 6
evidentiary presu mption is more plausible in that context. 7
The plain meaning of the text of the statute also supports my conclusion 8
that the legislature had no intention of including retrograde extrapolation as a "chemical 9
analysis" under paragraph (a). The legislature required that a BAC of .08 percent or more 10
must be "shown by chemical analysis of the breath or blood of the person" in order to 11
support a determination that a person has committed the offense of driving under the 12

influence under ORS 813.010(1)(a). The le gislature did not provide that a BAC of less 13
than .08 percent, as shown by chemical analysis, could somehow be rehabilitated or 14
explained away by expert testimony or any other circumstantial evidence under 15
paragraph (a). The terms the legislature used in paragraph (a) plainly require that a 16
chemical analysis made under ORS 813.100, ORS 813.140, or ORS 813.150 must itself 17
show that a person has a BAC of .08 percent or greater. That reading of the text is well 18
supported by the applicable definitions of the terms the legislature used in the statute and 19
by the general rules of grammatical construction that inform our understanding of 20

statutory terms. 21
The statutory phrase, "as shown by chemical analysis of the breath or 226

blood of the person made under ORS 813 .100, 813.140 or 813.150," when broken down 1
into its significant constituent parts, provides the following construct. "Shown" is the 2
past participle of the verb "show," and the synonyms for the general term "show" are as 3

follows: 4

" syn EVINCE, MANIFEST, EV IDENCE, DEMONSTRATE: in this series 5 SHOW is a general term, usu. interchangeable with any of the others, for 6 indicating, revealing, displaying[.]" 7
Webster's Third New Int'l Dictionary 2105 (unabridged ed 2002). "Chemical" means: 8

" 3 : having reference to o r relating to the science of chemistry[.]" Id. at 383. "Analysis," 9
in the context of chemistry, means: 10

" 4 a : the separation of compound substances into their constituents by 11 chemical processes b : the determination, which may or may not involve 12 actual s eparation, of one or more ingredients of a substance either as to kind 13 or amount; also : the tabulated result of such a determination[.]" 14

Id. at 77. Thus, the phrase "as shown by chemical analysis of the breath or blood of the 15
person" most directly and m ost reasonably is read to mean the result demonstrated by the 16

chemical test itself. 17
That point is made even more evident by the legislature's explicit 18
articulation of the three specific ways in which a person's BAC may be "shown" under 19
paragraph (a): by a chemical analysis "made under ORS 813.100, 813.140 or 813.150." 20
Those statutory provisions provide for the administration of chemical tests of the 21

defendant's breath, blood, or urine

-- without mention of any kind of extrapolation or 22
extrinsic interpre tation of the results of those tests. In limiting the chemical analyses that 23
can be used to those "made" under those statutes, the legislature specified a manner of 247

proof

-- a specific type of test with a specific result. It is the office of this court t o 1

ascertain and declare what is contained within the substance of the statute

-- not to insert 2
what may have been omitted or to second

- guess the policy choices made by the 3
legislature. See ORS 174.010 (providing that "[i]n the construction of a statute, t he office 4
of the judge is simply to ascertain and declare what is, in terms or in substance, contained 5

therein, not to insert what has been omitted."). Whether or not we think that modern 6
retrograde extrapolation analysis may be a reliable and convenient manner of proving a 7
defendant's BAC at the time of driving, it is not for us to add a fourth method to the three 8
the legislature saw fit to permit. Consequently, I determine that we should take the terms 9
the legislature enacted in ORS 813.010(1)(a) at fac e value and adhere to the policy choice 10
that the legislature made in setting out the specific manner for proving a violation of the 11

statute. 12
The legislative history of the statute also supports that interpretation. As 13
the majority notes, the legislative history of ORS 813.010(1)(a) provides little direct 14
enlightenment regarding whether the legislature ever actually considered the problem of 15
dissipation in the interim between the time of driving and the time of a chemical analysis. 16
__ Or at __ (slip op a t 15 n 10). But what little legislative history we do have on the 17
subject is at least consistent with, if not supportive of, a more restrictive reading of ORS 18
813.010(1)(a) than the majority allows. 19
The text "as shown by chemical analysis" was initially enacted in former 20

ORS 487.540(1)(a) (1975), repealed by Or Laws 1983, ch 338, § 978, as part of a 21
comprehensive overhaul of Oregon's motor vehicle laws, which included changes to 228

Oregon's DUII laws. 3 Prior to enacting that statute, the Committee on the J udiciary, 1
which prepared the Motor Vehicle Code and the text of former ORS 487.540(1)(a), 2
discussed the evidentiary problems that alcohol absorption and elimination could create 3
in DUII prosecutions. According to the committee minutes, then

- Solicitor Gene ral W. 4
Michael Gillette testified before the committee regarding the problem with time lapses in 5
chemical analyses in the following terms: 6

"[Gillette's] concern was that the trier of fact had been told that some use 7 could be made of a blood alcohol content of .08 percent and lower as 8 indirect evidence but he was not told what to do with evidence of .08 9 percent or higher. In addition to instructions as to what to do when the 10 evidence was less than .08, his proposal would give the courts direction as 11 to what to do when the analysis showed more than .08. He pointed out that 12 the blood test was not contemporaneous with the driving; the test results 13 were established at a later time. His answer to this problem as set out in his 14 proposed revision * * * was that a person who was shown to have .08 15 percent or higher at the time of the blood test was at least then under the 16 influence, and from there it could be inferred backward that he was under 17 the influence at the earlier time , even though the court could not be ce rtain 18 that his blood alcohol content at the time of driving was .08." 19
Minutes, Committee on Judiciary, Sept 24, 1974, 7 (emphasis added). That statement 20
highlights that the proposed answer to the evidentiary problems that alcohol absorption 21

and eliminatio n could create was to provide that, once a person is shown to have a BAC 22

3 Although former ORS 487.540 was repealed by Or Laws 1983, ch 338, § 978, the legislature's intent with regard to that provision presumably applies with equal for ce to ORS 813.010(1)(a), which was enacted by a different section of that same chapter and contained substantially the same text. The legislature explicitly provided that "[i]t is not the purpose or intent of the Oregon Legislative Assembly to change the law by enacting the revision of the Oregon Vehicle Code contained in chapter 338, Oregon Laws 1983." Or Laws 1983, ch 338, § 3.9

of .08 percent or higher at the time of the test , it can be inferred backward that the person 1
must have had a BAC no lower than .08 percent at the time of driving

-- even though the 2

c ourt could not be certain of the defendant's precise BAC at the time of driving. 4 That 3
theory is consistent with the language of the statute actually enacted by the legislature, 4
requiring BAC to be proved under paragraph (a) "by chemical analysis," 5 and a lso 5
comports with the additional provisions enacted by the legislature as former ORS 6

487.545(1) and (2) (1975). 6 Former ORS 487.545(1) specifically provided that the 7

4 Solicitor General Gillette's testimony referred to a BAC of .08 percent. The legislature initially enacted provisions in f ormer ORS 487.545 (1975), repealed by Or Laws 1983, ch 338, § 978, and former ORS 487.540 (1975), that set the legal presumption of intoxication at .10 percent BAC. The legislature then later modified the standard to .08 percent BAC, as it is currently se t out in ORS 813.300 and in ORS 813.010. Those changes in the BAC standard, however, do not affect the central issue in this case.

5 Former ORS 487.540(1)(a) (1975) provided:

" A person commits the offense of driving while under the influence of i ntoxicants if he drives a vehicle while:
"(a) He has .10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood, urine or saliva made under ORS 487.805 to 487.815 and 487.825 to 487.835[.]"

6 Former ORS 487.5 45(1) and (2) provided:
"(1) At the trial of any civil or criminal action, suit or proceeding arising out of the acts committed by a person driving a motor vehicle while under the influence of intoxicants, if the amount of alcohol in the person's blood at the time alleged is less than .10 percent by weight of alcohol as shown by chemical analysis of the person's breath, blood, urine or saliva, it is indirect evidence that may be used to determine whether or not he was then under the influence of intoxicant s.10

appropriate use of a BAC lower than the legal limit (then .10 percent), "as shown by 1

chem ical analysis," was as "indirect evidence that may be used to determine whether or 2
not [defendant] was then under the influence of intoxicants." By contrast, former ORS 3
487.545(2) provided that a BAC over the legal limit "constitutes being under the 4

influ ence of intoxicating liquor." 5
Consistent with that legislative history, all of the statutory provisions can be 6
given full effect by determining that the requisite proof for a prosecution under ORS 7
813.010(1)(a) is a chemical breath or blood test showing a BAC of .08 percent or higher 8
and determining that a chemical test showing a BAC lower than .08 percent constitutes 9
only indirect evidence that the person is under the influence of intoxicants for 10
prosecutions under ORS 813.010(1)(b) or (c). Those deter minations, of course, lead 11
ineluctably to the conclusion that a chemical test showing a BAC lower than .08 percent 12
cannot establish that a person drove with a BAC of .08 percent or higher, and any 13

"(2) Not less than .10 percent by weight of alcohol in a person's

blood constitutes being under the influence of intoxicating liquor."
ORS 813.300(1) and (2) now provide:
"(1) At the trial of any civil or criminal action, suit or proceeding arising out of the acts committed by a person driving a motor vehicle while under the influence of intoxicants, if t he amount of alcohol in the person's blood at the time alleged is less than 0.08 percent by weight of alcohol as shown by chemical analysis of the p erson's breath or blood, it is indirect evidence that may be used with other evidence, if any, to determine whether or not the person was then under the influence of intoxicants.
"(2) Not less than 0.08 percent by weight of alcohol in a person's blood con stitutes being under the influence of intoxicating liquor."11

testimony about the import of such a test result (based upo n retrograde extrapolation or 1
any other theory) is not relevant for purposes of determining whether the person violated 2

ORS 813.010(1)(a). 3
Furthermore, this determination also comports with the prior decisions of 4

this court. In State v. O'Key , 321 Or 285, 308, 899 P2d 663 (1995), this court stated that 5
"the offense of DUII with a .08 percent or more BAC may be proved only by a ' chemical 6
analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 7
813.150.'" (Emphasis in or iginal.) The majority correctly notes that the precise issue 8
addressed by this court in O'Key was limited to whether the horizontal gaze nystagmus 9
(HGN) test was admissible under ORS 813.010(1)(a) to prove that the defendant drove 10
with a BAC of .08 percen t or more, but I think it significant that this court described the 11
universe of available proof under ORS 813.010(1)(a) as limited to a chemical analysis of 12
the breath or blood. The majority opinion distinguishes in this case between an HGN 13

test, which is clearly not a chemical test, and testimony concerning retrograde 14
extrapolation, which the majority concludes is derived from a chemical test. __ Or at __ 15
(slip op at 12

- 13). But in doing so, the majority opinion acknowledges, as it must, that 16
testimony explaining retrograde exploitation analysis is not a chemical test. Id . And that 17
is where we draw different lines. While the majority opinion concludes that testimony 18
concerning retrograde extrapolation is admissible to prove a violation of ORS 19

813.010( 1)(a), despite the fact that the majority agrees that testimony about retrograde 20
extrapolation is not a chemical test that shows the BAC of the defendant, I conclude, in 21
harmony with this court's express statement in O'Key , that only a chemical test that s hows 2212

that the BAC of the defendant was .08 percent or more at the time of the test is 1
admissible to prove such a violation. 2
The majority also relies in part on this court's decision in State v. Clark , 286 3
Or 33, 593 P2d 123 (1979), for support.

__ Or at __ (slip op at 11). The only issue 4
directly presented in Clark , however, was defendant's right to attack the validity and 5
accuracy of the chemical test result that showed that defendant had a BAC of .10 percent 6

or more under former ORS 487.540. The narro w issue decided by this court in Clark was 7

that, 8
"because the 'chemical analysis' of the blood test of this defendant by the use of a 9
Breathalyzer could 'produce invalid results through human error or chemical or 10

mechanical defect,' the defendant was entit led to attempt to impeach the accuracy of the 11
testimony of the expert witness relating to the results of that test by any competent 12

evidence." 13
286 Or at 43. Here, of course, the testimony that the state wished to present concerning 14
retrograde extrapolatio n was not in any way intended to impeach the accuracy of the 15
chemical test result; indeed, the testimony necessarily relied upon the accuracy of the 16
chemical test result that showed that defendant's BAC was .064 percent (well below the 17
statutory standard o f .08 percent). Nothing expressed by this court in Clark addresses the 18
issue presented in this case

-- viz ., whether evidence that is unrelated to the accuracy of 19
the chemical test result is admissible in a prosecution under ORS 813.010(1)(a). 20
Finally, the majority also notes this court's decision in State v. Parker , 317 21
Or 225, 855 P2d 636 (1993). __ Or at __ (slip op at 10). In Parker , however, there was 2213

no distinction drawn between a prosecution pursued under ORS 813.010(1)(a) and 1
prosecutions pursu ed under ORS 813.010(1)(b) and (c). See Parker , 317 Or at 227 2
(noting that defendant was charged with driving under the influence under ORS 813.010 3
generally). The court then merely noted in passing, in addressing the propriety of a 4
denial of a request f

or a continuance, that in a prosecution brought under ORS 813.010 5
the state could rely upon the common knowledge that blood alcohol dissipates over time, 6
and that defendant could have prepared to address that issue whether or not the state gave 7
timely noti ce of its intent to present expert testimony on the matter. Id. at 232 n 9. In 8
addition, while this court did also refer to the fact that there was expert testimony 9
presented to establish that defendant's BAC was greater than .08 percent at the time of t he 10
accident, based upon a breath test result showing a BAC of .07 percent more than five 11
hours later, that discussion is of no moment here, because the admissibility of that 12
evidence in a prosecution pursued solely under ORS 813.010(1)(a) was not presented or 13

decided in Parker . Consequently, this court's decision in Parker is also inapposite to the 14
issue presented in this case. 15
As discussed above, I conclude that the text and legislative history establish 16
that the legislature intended prosecutions under ORS 813.010(1)(a) to rely only on 17
chemical test results showing that the defendant had a BAC of .08 percent or more at the 18
time of the test. I also conclude that that interpretation of ORS 813.010(1)(a) is 19
consistent with, and not precluded by, this court 's prior decisions. Consequently, I would 20
hold that the trial court properly excluded the retrograde extrapolation testimony 21
proffered by the state. I respectfully dissent, therefore, from the contrary determination 2214

reached by the majority. 1

Durham and Walters, JJ., join this opinion. 2

3