Supreme Court of Oregon Finds Police Officer’s Testimony That an Adult’s Eyes Regress to “Baby Eyes” When Drunk Was Improperly Admitted

Similar to its federal counterpart, Oregon Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

So, would a trial court correctly overrule a defendant’s “hearsay” objection when a law enforcement officer testified that he learned from an ophthalmologist during training that  babies have limited peripheral vision and that a person impaired by alcohol “could be said to be seeing just like a baby”? That was the question addressed by the Supreme Court of Oregon in its recent opinion in State v. Bowman, 2025 WL 341133 (Or. 2025).

In Bowman, the defendant was charged with driving under the influence of intoxicants (DUII), reckless driving, and reckless endangerment. At trial, an officer (Wertz) who conducted a horizontal gaze nystagmus (HGN) field sobriety test on the defendant gave the testimony noted above and also stated that that alcohol causes an adult’s eyes to “regress to like being a child, or being a baby.” On appeal, the Supreme Court of Oregon found this testimony was inadmissible under Rule 703, finding as follows:

Nor do we agree with the state’s contention that the trial court correctly allowed the testimony under OEC 703 because Wertz was “trying to explain the basis” for his opinion, such that his testimony was not hearsay. Wertz’s permissible expert opinion was that defendant had been impaired by her consumption of alcohol. And he permissibly explained that he had based that opinion on his observation of defendant’s eyes during the HGN test and her performance during the other two field sobriety tests. Wertz also explained the foundational basis for his opinion that the HGN observations demonstrated impairment was that he had (1) been trained on the proper administration of the HGN test; (2) learned in that training that alcohol consumption causes the same type of nystagmus that he had observed in defendant’s eyes when he had administered the HGN test to her; and (3) administered the HGN test to defendant properly and accurately recorded the results of that test.

But Wertz at no point suggested that, in forming his own opinion that defendant had been impaired by the consumption of alcohol, he had relied on [Dr.] Citek’s proposition that babies must turn their heads to focus on objects in their peripheral vision or that “a person with enough alcohol on board could be said to be seeing just like a baby, or they are not able to even look at something independent of moving their head.” If anything, those propositions are at odds with the observations on which Wertz had based his opinion, because he specifically testified that defendant did follow the pen from side to side without turning her head during the HGN test. And the state does not even attempt to argue that information about the functioning of a baby’s eyes qualifies as facts or data “reasonably relied upon by” DRE experts in detecting impairment on the road, as Rule 703 requires.

Moreover, even assuming that such information did qualify as a type that a DRE expert might reasonably rely upon to form opinions about a driver’s impairment, Wertz did not solely repeat what he had heard about the functioning of a baby’s eyes for the purpose of explaining his own impairment opinion. Rather, the prosecutor elicited and relied upon that testimony for the truth of the matter. The prosecutor repeatedly prompted Wertz to repeat what *231 the prosecutor had “heard other officers describe” about the eyes of a person with HGN present having regressed to “like being a child, or being a baby,” finally announcing “[t]hat’s what I wanted to get to” when Wertz eventually described that concept. And later in closing argument, the prosecutor pointed to Wertz’s testimony as if the proposition were true, emphasizing: “We don’t want to be regressing back to when we were a child and we have to turn our head to focus on things. We want peripheral vision.” As explained above, Rule 703 does not allow an expert to violate the prohibition on hearsay set out in Rule 802.

-CM