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Publications.ojd.state.or.us
Suzanne Upton, Judge. Submitted September 27, 2012. Peter Gartlan, Chief Defender, and Erik Blumenthal,
Deputy Public Defender, Office of Public Defense Services,
John R. Kroger, Attorney General, Anna M. Joyce,
Solicitor General, and Joanna L. Jenkins, Assistant
Attorney General, filed the brief for respondent.
Before Wollheim, Presiding Judge, and Nakamoto, Judge,
NAKAMOTO, J. Affirmed. Defendant was convicted after a jury trial of one count of driving under the
influence of intoxicants (DUII), a misdemeanor. ORS 813.010. After the court
gave its jury instructions but before deliberations had begun, a juror asked the
court whether Ambien, a central nervous system depressant, was a controlled
substance. In response, the court did not answer the juror’s question and instead
indicated that the jury was to proceed to deliberations, having heard all the
evidence and the jury instructions. On appeal, defendant assigns error to the
trial court’s failure to instruct the jury further that defendant’s Ambien use
was irrelevant to the case, arguing that Ambien was not a relevant controlled
substance for which to convict defendant. Held: Defendant’s request for a jury
instruction was not the proper procedure to exclude evidence already in the
record. In addition, defendant’s requested jury instruction was not a correct
statement of the law because defendant’s testimony about his Ambien use, and
other evidence concerning Ambien, was relevant to the question of whether
defendant drove while under the influence of “controlled substances.”
NAKAMOTO, J.
Defendant was convicted after a jury trial of one
count of driving under the influence of intoxicants (DUII),
a misdemeanor. ORS 813.010.1 After the court gave its
jury instructions but before deliberations had begun, a
juror asked the court whether Ambien, a central nervous
system depressant, was a controlled substance. In response,
the court did not answer the juror’s question and instead
indicated that the jury was to proceed to deliberations,
having heard all the evidence and the jury instructions. On
appeal, defendant assigns error to the trial court’s failure to
instruct the jury further that defendant’s Ambien use was
irrelevant to the case. First, defendant asserts that the state
prosecuted him on the theory that he had used narcotics and
was impaired by narcotics, not Ambien. Second, defendant
suggests that, although there was evidence that Ambien
is a controlled substance, the state failed to establish, as
a matter of law, that defendant was impaired by Ambien.
Third, defendant argues that, given the state’s theory
and the evidence at trial, the trial court was required to
instruct the jury that Ambien was not a relevant controlled
substance when it became clear that the jury might consider
defendant’s use of Ambien as a basis upon which to convict
him. For the following reasons, we affirm.
We take the following facts from the record.
Officer Hyson was on patrol in the morning when he saw
defendant drive through an intersection without stopping
at a stop sign. After Hyson pulled over defendant, he asked
for defendant’s license, registration, and proof of insurance.
After Hyson repeated his request for the three documents,
defendant appeared to have difficulty retrieving his license
from his wallet. Hyson noticed that defendant’s speech was
“A person commits the offense of driving while under the influence of
intoxicants if the person drives a vehicle while the person:
“(b) Is under the influence of intoxicating liquor, a controlled substance or
Shortly after Hyson stopped defendant, he became
concerned that defendant was having medical problems or
was impaired by medication. After denying any immediate
medical problems, defendant agreed to take field sobriety
tests. When defendant got out of his car, he swayed and
stumbled such that Hyson had to place his hand on
defendant’s arm until defendant was able to regain his
balance. Hyson then administered three field sobriety tests
to defendant. Hyson first administered the horizontal gaze
nystagmus (HGN) test, an eye examination developed to
detect intoxication. Hyson observed nystagmus and six out
of the six possible “clues” indicating intoxication. During the
HGN test, Hyson did not note the size of defendant’s pupils.
For the “walk-and-turn” test, Hyson asked defendant to
walk nine steps in a straight line in a heel-to-toe fashion and
then return to the starting position. Defendant was unable
to maintain the starting position, needing help from Hyson
because he was swaying and stumbling, and then defendant
could not walk in a straight line and almost fell when
turning. Last, Hyson requested that defendant perform the
“one-leg stand” test. Hyson instructed defendant to stand
feet together, lift one foot at least six inches off the ground,
and remain in that position for approximately 30 seconds.
Defendant stated that no one could perform that test, and
when defendant lifted his foot off the ground, he began to
sway and stumble sideways. Hyson discontinued the test
At the jail, defendant agreed to provide a urine
sample. Bessett, a criminalist at the Oregon State Police
Crime Lab, analyzed defendant’s urine sample and prepared
a written report. In his written report, Bessett confirmed the
following substances present in defendant’s urine sample:
“Methadone, a Schedule II controlled substance and its
metabolite EDDP[.] “Oxycodone (Oxycontin, Percodan), a Schedule II
controlled substance[.] “Morphine, a Schedule II controlled substance and a
metabolite of several opiates[.] “Citalopram (Celexa) and/or escitalopram (Lexapro)
both prescription controlled anti-depressants[.]”
(Bullet points omitted.) Several days later, the state filed a
traffic complaint for one count of DUII. The traffic complaint
alleged that defendant was under the influence of “controlled
substances” but did not specify which ones.
Bessett testified at trial. Before explaining the
findings in his written report, he described his training. In
part, he said that he had had training in drug classifications,
and he described central nervous system depressants, such
as Valium or Ambien, as an example of a drug classification.
He also described the effects of a central nervous system
depressant: it lowers a person’s heart rate, lowers a person’s
breathing rate, and makes the person feel more relaxed.
With regard to the substances listed in Bessett’s
report that were confirmed to be present in defendant’s
urine, Bessett explained that methadone is a Schedule
II controlled substance that is in the category of narcotic
analgesics, which are considered depressants. Side effects
of narcotic analgesics, he testified, may include confusion,
disorientation, drowsiness, and mental clouding, and
so narcotic analgesics may impair mental and physical
capabilities. He explained that oxycodone, the active
ingredient in Oxycontin and Percodan, and morphine are
Schedule II controlled substances too and also are narcotic
analgesics with side effects similar to methadone.2 Bessett
explained the scheduling system for drugs and gave examples
of drugs that would fall in each schedule, from Schedule
I to Schedule V. Bessett’s example of a Schedule IV drug
was Ambien. Bessett testified that methadone, oxycodone,
and morphine are detectible in urine from two hours to
two days after use. On cross-examination, Bessett testified
that, generally, people under the influence of narcotics have
“pinprick pupils” and do not display nystagmus when given
2 Bessett also described citalopram and escitalopram as prescription
antidepressants, but noted that they did not have any relevant side effects alone
or combined with other drugs. Defendant’s counsel moved to strike the evidence of
citalopram and escitalopram as irrelevant because those drugs are not controlled
substances and do not have any additive effects when combined with other drugs.
The court sustained defendant’s motion and excluded any further discussion of
To some extent, Bessett testified regarding
defendant’s possible use of Ambien. He explained during
direct examination that he was required to perform two
tests on a urine sample: a screening test and a confirmation
test. The screening test identifies the presence of a drug and
its general type, e.g., narcotic. The next test, the confirming
test, identifies the exact drug that is present in the urine
sample. He then stated that, although the screening test
had identified the presence of two other substances, Ambien
and 7-amino Clonazepam, he was unable to find those again
on the confirming test. During cross-examination, Bessett
agreed that he was “not offering testimony that those other
drugs [Ambien and 7-amino Clonazepam] were actually
present because [he] didn’t confirm them.” Defense counsel
then questioned Bessett regarding the narcotic analgesics
that were confirmed to have been found in defendant’s urine
In her redirect examination of Bessett, however, the
prosecutor returned to the topic of Ambien. Bessett testified
that, although narcotic analgesics do not typically cause
nystagmus, which defendant exhibited during the HGN
test, central nervous system depressants, such as Ambien,
Clonazepam, and other drugs, do cause nystagmus. The
prosecutor then asked, “[D]id you find any of those drugs
present?” Defense counsel objected on the ground that the
question had been “asked and answered” and argued that
Bessett had already said that he could not confirm them
or offer evidence that those types of drugs were actually
present. The court overruled the objection, and Bessett
“I did detect those drugs—two drugs, Ambien and a
drug called 7-Amino Clonazepam, which is a—like that
EEDP, it’s a breakdown product of Clonazepam. And those
two drugs are in the category of central nervous system
Defendant also testified at trial. He stated that he
was prescribed the substances found in his urine sample to
treat some of his medical issues but denied taking narcotics
the morning Hyson arrested him. Defendant explained that
he routinely takes his medication after lunch in the mid-
afternoon and he had not taken any medication the morning
that he was pulled over. However, defendant volunteered
that he might have taken Ambien: “I think at the time the—
the ticket was written, I might have taken Ambien the night
In closing argument, the prosecutor called the jury’s
attention to Bessett’s testimony that Ambien would explain
the nystagmus that Hyson observed during the HGN test.
However, the prosecutor focused on the narcotics and argued
that the testing showed that, just as defendant admitted, he
used methadone, oxycodone, and morphine every day and
that, given Hyson’s observations of defendant’s behavior,
there was ample evidence to conclude that defendant was
“impaired by these drugs when he was driving.” Defendant’s
counsel argued that the state had presented a case of
speculation because Hyson observed nystagmus and there
was no evidence of constricted pupils, which contradicted
the state’s theory that defendant was under the influence of
After closing arguments, the trial court instructed
the jury that, to convict defendant, it needed to find that
defendant drove while under the influence of a controlled
substance. The trial court also instructed the jury, with
the agreement of the parties, that “as a matter of law
Methadone, Oxycodone, Percodan, and Morphine are all
After the court instructed the jury but before the
jurors left the courtroom to begin deliberations, a juror
asked the court a question regarding defendant’s Ambien
“JUROR: Okay. The case revolves around the use
of Ambien. I have personal experience because I * * *
was prescribed that for a sleeping disorder a number of
years ago, and my question revolves around—that we’re
talking about the narcotics, the—the three narcotics, and
my question is, is Ambien considered a narcotic in—or a
controlled substance in this particular case. We didn’t
receive testimony one way or another and I think that
In response to the juror’s question, the court told the jurors
that they had heard all of the evidence and jury instructions
in the case and explained that the court would not comment
“THE COURT: Okay. Well, here’s what I would tell
you, is, is that all of the evidence is the evidence that you’ve
heard and all of the instructions are the ones that I’ve given
you. And this is one of the many reasons why we have more
than one person as a jury to decide this. And even though
that’s how you categorize it that way, you may find that
your jurors will assist you in thinking of it in a different
way or the same way, but help you decide that. I don’t know.
“But all of this falls within the category of what the jury
decides. I’m not the one that puts on the evidence and I’m
not the one that gets to comment on it. That’s something
[that] is perhaps for you to ask your fellow jurors, and one
of the things that comes up. But, again, I’m not even saying
After the jury left, defendant objected to the court’s
response to the juror’s question and contended that the court
should instruct the jury that Ambien was not relevant to the
“[DEFENSE COUNSEL]: With regard to the juror’s
question, I—I think it—had that been submitted formally,
I’m going to treat it as such, even though it was an oral
question not a written question, that I think [that] the appropriate instruction of the Court would be that Ambien’s not relevant to the case (indiscernible). But there was—the
State has charged controlled substance, to-wit: Ambien—
it’s not Ambien, excuse me, the various narcotics that were
(Emphasis added.) The court determined that the juror’s
question related to a factual matter for the jury to decide.
Later, during deliberations, the jury told the bailiff
that they were split and submitted a written question to
the court. The trial judge called the prosecutor and defense
counsel back to the courtroom and read them the jury
question: “Does the charge DUII * * * mean * * * under the
influence * * * or * * * required impairment to drive * * *?”
(Internal quotation marks omitted.) After hearing from
counsel for the parties, the court reinstructed the jury as to
“the following substances are controlled substances. So,
in other words, in addition to anything you heard about
this, in terms of evidence, it is also true as a matter of law
that Methadone, Oxycodone, Percodan and Morphine are
controlled substances as a matter of law.”
The jury then found defendant guilty of DUII, and the trial
court sentenced defendant to two years of enhanced bench
probation, subject to general and special conditions.
On appeal, defendant assigns error to the trial
court’s failure to instruct the jury that defendant’s Ambien
use was not a relevant controlled substance for which to
convict defendant, relying on a three-step argument. First,
defendant asserts that the state prosecuted him on the
theory that he had used narcotics and was impaired by
narcotics, not Ambien. Second, in a related vein, defendant
contends that, although there was evidence that Ambien is
a controlled substance, as a matter of law, the state failed to
establish that defendant was impaired by Ambien because
there was no evidence as to the effects Ambien has on a
person’s ability to drive, the amount of Ambien present in
defendant’s urine sample, or the amount of Ambien that
could impair a person’s driving. Third, defendant argues
that, given the state’s theory and the evidence at trial, the
trial court was required to instruct the jury that Ambien
was not a relevant controlled substance when it became
clear that the jury might consider defendant’s use of Ambien
as a basis upon which to convict him. In defendant’s view,
his requested jury instruction was not an impermissible
The state argues that defendant has preserved only
a narrow issue for appeal: whether the court was required to
instruct the jury that Ambien was not relevant to the case.
The state points out that, in response to the juror’s question,
defendant requested that the court instruct the jury that
“Ambien’s not relevant to the case[.]” The state contends that
defendant is now arguing points that he did not preserve for
appeal, namely, that the court’s instruction to the jury was
misleading and that the evidence relating to Ambien was
insufficient for a jury to have found defendant guilty of DUII.
We therefore begin our analysis by addressing preservation.
To preserve an issue for appeal, a party’s
explanation must be “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, if
correction is warranted.”, 331 Or 335, 343,
15 P3d 22 (2000). As the state acknowledges, defendant
properly preserved the issue of whether the trial court was
required to instruct the jury that Ambien was irrelevant
to the case; defendant specifically requested that the court
instruct the jury that Ambien was irrelevant. We also note
that defendant objected to the court’s response to the jury’s
question and requested the Ambien instruction because the
state had accused defendant of being under the influence of
“the various narcotics that were listed.” That was sufficient
to alert the state and the court of his position that the state’s
theory could not change from narcotics use to Ambien use.
We also conclude that defendant’s additional arguments—
that the court’s instruction to the jury was misleading and
that the evidence relating to Ambien was insufficient for a
jury to convict him—were preserved insofar as they support
his argument that the court should have instructed the jury
that Ambien was not a relevant controlled substance.
We turn, then, to the merits of defendant’s assignment
of error—whether the court was required to instruct the jury
that evidence of Ambien was irrelevant to convict defendant
of DUII. As previously noted, defendant argues that his
requested jury instruction—that Ambien was not relevant—
was a correct statement of the law and, therefore, was not an
impermissible comment on the evidence. The state argues
that the jury was entitled to rely on the Ambien evidence
admitted in the case to reach its verdict.
We begin our analysis of the merits by addressing the
applicable standard of review. Although the parties agree that
our standard of review is for legal error, they differ over the
163 Or App 507, 511-12, 990 P2d 345 (1999), and asserts
that we must determine whether the trial court’s answer to
the juror’s question could have misled the jury.3 Defendant
3 We conclude that Jones is inapposite to this case. In Jones, the jury submitted
a written question during deliberations regarding the elements of conspiracy to
commit murder: “Is the defendant guilty of conspiracy if he did indeed make a plan
contends that the jury was misled because “Ambien was not
a valid controlled substance from which the jury could find
that defendant committed DUII.” The state, however, cites
and contends that we must determine whether defendant’s
additional requested jury instruction—that Ambien is
irrelevant to the case—constituted an improper comment
on the evidence. The disputed question the parties present
to us relates to a factual issue that was raised by evidence
presented at trial, namely, defendant’s use of Ambien. We
therefore agree with the state that Maciel-Cortes governs.
We review whether a jury instruction—requested or given—
is a comment on the evidence for legal error. Maciel-Cortes,
127, 130, 995 P2d 1200, rev den, 331 Or 429 (2000)).
Under ORCP 59 E, a trial court “shall not instruct”
the jury “with respect to matters of fact” or comment on
the evidence. See ORS 136.330(1) (ORCP 59 is applicable
in criminal cases). “A court impermissibly comments on the
evidence when it gives a jury instruction that tells the jury
how specific evidence relates to a particular legal issue.”
Defendant argues that his requested instruction was not an
impermissible comment on the evidence because Ambien did
not relate to any legal issue in the case. Our resolution of
the issue is driven by two related, but separate conclusions:
(1) defendant did not follow the proper procedure to exclude
evidence of Ambien from the record, and (2) his requested
jury instruction was not legally correct.
First, defendant’s request for a jury instruction
was not the proper procedure to exclude evidence already in
the record. The state presented evidence related to Ambien
multiple times during the trial. Bessett testified that, in
his screening test, he detected, but was unable to confirm,
with others to kill or must it be proved that the defendant was definitely serious,
and fully intended to go through with the plan?” 163 Or App at 510 (emphasis
in original). The jury’s question was submitted in the disjunctive, but the trial
court answered, “Yes” to both questions. Id. We determined that the trial court’s
instruction was illogical and, therefore, prejudicial. Id. at 511-13. In this case,
however, defendant is not arguing that the trial court’s response to the juror’s
question was incorrect. Instead, defendant contends that the trial court was
required to give his requested jury instruction—that Ambien was not relevant.
that Ambien was a substance present in defendant’s urine
sample. Bessett stated that Ambien is a Schedule IV central
nervous system depressant that, generally, lowers a person’s
heart rate, lowers a person’s breathing rate, and makes the
person feel more relaxed. Bessett also explained that drugs
like Ambien can cause nystagmus, which Hyson observed
At no point during the state’s presentation of
evidence at trial did defendant try to inform the court that
the state’s evidence regarding Ambien should be excluded
based on relevance grounds; defendant did not object
to or move to strike the state’s evidence of defendant’s
Ambien use or its effects. SeeState v. Keller, 315 Or 273,
283, 844 P2d 195 (1993) (citing OEC 103(1)(a) and noting
that an objection is considered “timely” if it is made when
the offered evidence is known to the opposing party and
when the trial court has the basis to properly assess its
admissibility). Nor did defendant request an instruction
limiting the state’s evidence of Ambien for the purpose of
explaining the schedules of controlled substances. See OEC
105 (“When evidence which is admissible as to one party or
for one purpose but not admissible as to another party or for
another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope and instruct the
jury accordingly.”). Moreover, when defendant testified, he
admitted that he “might have taken an Ambien” the night
Defendant could have taken steps to exclude
or to limit any testimony regarding Ambien during the
evidentiary phase of the trial. Notably, defendant’s counsel
did move to strike the state’s evidence of defendant’s use of
the antidepressants citalopram and escitalopram, and their
effects, as irrelevant, and the trial court excluded testimony
concerning those drugs. Defendant’s counsel could have
moved to strike the evidence concerning Ambien as well, or
could have requested a limiting instruction, and he should
have done so before defendant testified about his Ambien
use. In this case, however, after the evidentiary record
was closed, all of the evidence concerning Ambien was in
the record. Regardless of whether the evidence of Ambien
was actually relevant to the case, the jury was entitled to
consider that evidence because it had been admitted without
objection from either party. Thus, defendant was in no
position to challenge that evidence as irrelevant for the first
time through a proposed peremptory jury instruction.
Second, we conclude that defendant’s requested jury
instruction—that Ambien is “not relevant to the case”—was
not a correct statement of the law. See
, 344 Or 45, 56, 176 P3d 1255 (2008) (stating the
principle that there is no error in a trial court’s refusal to
give a proposed jury instruction if that instruction is not
legally correct). For defendant’s requested jury instruction
to be legally correct, we would have to conclude that, as
a matter of law, Ambien was not relevant for the purpose
of convicting defendant of DUII. As previously explained,
both the state and defendant presented evidence of Ambien.
The state presented evidence that (1) during the HGN
test, defendant displayed nystagmus and, unlike narcotics,
central nervous system depressants, like Ambien, cause
nystagmus; and (2) Ambien is a controlled substance.
Apparently in an attempt to contradict the state’s evidence
of his impairment by narcotics, defendant testified that he
might have taken an Ambien, consistent with his display
of nystagmus. Defendant’s testimony about his Ambien use,
and the other evidence concerning Ambien, was relevant to
explain the observation of nystagmus and to the question
of whether defendant drove while under the influence of
“controlled substances.” If the court had instructed the jury
that Ambien was irrelevant, that instruction would have
been legally incorrect. Accordingly, we conclude that the trial
court did not err when it did not give defendant’s requested
jury instruction and affirm the judgment of conviction. Affirmed.
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Voces: CUESTION DE PURO DERECHO ~ PROCEDIMIENTO CONTENCIOSO ADMINISTRATIVO ~ RECURSO DE REPOSICION ~ SEDE ADMINISTRATIVA Tribunal: Suprema Corte de Justicia de la Provincia de Buenos Aires(SCBuenosAires) Fecha: 11/12/1986 Partes: Lesieux, María T. c. Instituto de Previsión Social -B. 50.359 Publicado en: LA LEY 1987-D con nota de Osvaldo M. Bezzi; Ana María Bezzi; Osvaldo H. Bezzi LA