Opinion
9311-228OC; CA A83139
On respondent's motion for reconsideration filed January 26, reconsideration allowed; opinion ( 132 Or. App. 478, 888 P.2d 1087) modified and adhered to as modified March 22, 1995
Appeal from District Court, Linn County.
Rick J. McCormick, Judge.
Eric M. Cumfer, Deputy Public Defender, for motion.
Before Richardson, Chief Judge, and De Muniz and Leeson, Judges.
PER CURIAM
Reconsideration allowed; opinion modified and adhered to as modified.
Pursuant to ORAP 6.25, defendant moves for reconsideration of our opinion, State v. Conner, 132 Or. App. 478, 888 P.2d 1087 (1995), in which we held that the state need not establish the scientific reliability of Horizontal Gaze Nystagmus (HGN) test evidence at trial.
Defendant points out that we failed to address his argument that, even if the results of the HGN test are admissible, the trial court correctly excluded Officer Maddox's testimony in which he gave an opinion about defendant's blood alcohol level based on the HGN test. Defendant asserts that Maddox was not qualified to express an expert opinion about defendant's probable blood level based on the roadside HGN test. See State v. Jacobs, 109 Or. App. 444, 819 P.2d 766 (1991). At oral argument, the state conceded that the trial court did not err in excluding that evidence on that basis. Accordingly, we allow defendant's motion and affirm the exclusion of Maddox's testimony concerning defendant's blood alcohol level.
Reconsideration allowed; opinion modified and adhered to as modified.