State v. Lowes

No. 1017 October 21, 2026 87 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. CHRISTOPHER ARTHUR LOWES, Defendant-Appellant. Lincoln County Circuit Court 23CR31303; A184536 Joseph C. Allison, Judge pro tempore. Argued and submitted April 7, 2026. Kasey Anne Hooker, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Interim Deputy Attorney General. Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán, Judge.* LAGESEN, C. J. Affirmed. ______________ * Lagesen, C. J. vice Págan, J. 88 State v. Lowes LAGESEN, C. J. Defendant appeals a judgment of conviction for driv- ing under the influence of intoxicants, ORS 813.010(4), and reckless driving, ORS 811.140. Defendant raises two assign- ments of error on appeal. Defendant’s first assignment of error is that the trial court erroneously admitted an officer’s testimony that he observed “four out of eight possible” indica- tors of impairment on a field sobriety test (FST) and at “two” indicators impairment might be suggested. Defendant’s second assignment of error is that the trial court erred by failing to give a less-satisfactory-evidence instruction over defendant’s objections. For the reasons that follow, we affirm. In his first assignment of error, defendant argues there is no “meaningful difference between the testimony in this case and our prior case law where we held that sim- ilar testimony presented scientific evidence.” State v. Ortiz, 343 Or App 31, 40, 578 P3d 702 (2025). Even assuming that admitting the officer’s testimony was error, any error was not so “grave such that the ends of justice support rever- sal.” State v. Hall, 336 Or App 812, 824, 562 P3d 284 (2024). Where there is “a significant amount of other evidence of impairment,” we have repeatedly declined to exercise our discretion to correct similar alleged plain errors. See e.g., State v. Redman, 338 Or App 384, 386, 566 P3d 5 (2025) (declining to exercise discretion where the record showed that defendant failed to stop at an intersection, displayed physical symptoms of intoxication, and performed poorly on the horizontal gaze nystagmus test); see also State v. Vaninetti, 346 Or App 177, 584 P3d 294 (2025) (declining to exercise discretion in light of evidence of defendant’s poor driving and involvement in a car crash). Defendant’s conduct in the bodycam footage, the officer’s non-FST testi- mony, and the results of the breathalyzer test provide strong evidence that defendant was impaired.1 Most critically, the breathalyzer test measured defendant’s blood alcohol con- centration at 0.15 percent—well above the legal limit of 0.08 percent. ORS 813.010(1)(a). Additionally, had defendant 1 To be clear, we do not rely on the testimony specifically challenged by defen- dant on appeal in declining to correct the asserted error. Rather, we consider the non-FST testimony that defendant smelled strongly of alcohol, his eyes were watery and bloodshot, and the presence of open alcohol containers in his car. Nonprecedential Memo Op: 354 Or App 87 (2026) 89 objected to the testimony at trial, “the trial court could have easily corrected the error by striking the testimony and instructing the jury to disregard it.” Redman, 338 Or App at 397. Therefore, on balance, the significant evidence of impairment and ease with which the error could have been corrected weigh heavily against the exercise of discretion in this case. See State v. Inman, 275 Or App 920, 935, 366 P3d 721 (2015) (the judicial system’s interests in requiring pres- ervation are “weighty,” and “the ease with which any error could have been avoided or corrected should be a significant factor in an appellate court’s decision whether to exercise its discretion to correct a plain, but unpreserved, error”). Separately, defendant argues that the trial court erred in declining to give the “less-satisfactory-evidence” instruction to the jury. We review the trial court’s refusal to give the less-satisfactory-evidence instruction under ORS 10.095 for errors of law and consider the evidence in the light most favorable to the party requesting the instruc- tion to determine whether that evidence supports giving the requested instruction. State v. Payne, 366 Or 588, 603-07, 468 P3d 445 (2020). Defendant contends that the instruction was proper because defendant had a statutory right to obtain an inde- pendent blood test at his own expense and was denied that right by the affirmative conduct of the police. Defendant is correct that he was denied his statutory right to an inde- pendent blood test.2 Under these circumstances, assuming for the sake of argument that the less-satisfactory-evidence instruction could apply to a situation like this one, the alleged error is not a basis for reversal, because there is no basis to infer that a blood test would have favored defendant. ORS 10.095 provides, in relevant part, that the jury is to be instructed on all proper occasions “that if weaker 2 Under ORS 813.150, a person must be permitted reasonable opportunity to obtain a blood test upon request. See ORS 813.150 (stating that a person “shall be permitted upon request, at the person’s own expense, reasonable opportunity to have any licensed . . . qualified person of the person’s own choosing administer a chemical test or tests of the person’s breath or blood for the purpose of determin- ing the alcoholic content of the person’s blood”). When “police conduct either pre- vents or hinders the defendant’s attempt to obtain a test,” that person is denied a reasonable opportunity under the statute. Davis, 254 Or App at 390. 90 State v. Lowes and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.” ORS 10.095(7), (8). In other words, the party requesting the instruction must show that “(1) the evidence the state did not present was reasonably available, and (2) the evidence was stronger than other evidence the state offered.” State v. Copeland, 324 Or App 816, 826, 527 P3d 771 (2023). That is to say, “the appropriateness of the instruc- tion is a two-pronged inquiry. It is not enough that [the] evidence was available to the state; the defendant must also establish that the evidence was stronger and more sat- isfactory than the evidence offered.” State v. West, 289 Or App 415, 419, 410 P 3d 382 (2017). Here, viewing the evi- dence in the light most favorable to defendant, there is no basis to conclude that the results of a blood test would ben- efit defendant. Even assuming that the results of a blood test are more accurate than a breath test, and thus “more satisfactory,” the overwhelming evidence (excluding consid- eration of the evidence that defendant contends was erro- neously admitted in his first assignment of error) suggests that defendant was highly intoxicated. ORS 10.095(8). As previously discussed, defendant displayed clear symptoms of impairment. Based on the bodycam footage, the officer’s unchallenged testimony, and the results of the breathalyzer test, there is no basis to conclude that a blood test would be anything other than cumulative of the other evidence. See State v. McNassar, 77 Or App 215, 218, 712 P2d 170 (1986) (concluding that the arresting officer’s testimony was “strong evidence” and “[i]f other evidence were favorable to the state, it would most likely be a repetition of the officer’s testimony”). Thus, on this record, the trial court properly declined to give the instruction. Affirmed.