Full Opinion

718 November 12, 2026 No. 1109 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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. JOSE ANTONIO TULA RUIZ, aka Antonio Tula Ruiz, Defendant-Appellant. Multnomah County Circuit Court 24CR21668; A186061 Christopher A. Ramras, Judge. Submitted October 7, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and James Brewer, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Egan, Judge, and Jacquot, Judge. JACQUOT, J. Affirmed. Nonprecedential Memo Op: 354 Or App 718 (2026) 719 JACQUOT, J. Defendant appeals a judgment of conviction for driv- ing under the influence of intoxicants (DUII), ORS 813.010, and driving while suspended, ORS 811.182(4). Defendant was found guilty of both counts by a jury and now raises one assignment of error, arguing that the trial court erred in admitting the results of a horizontal gaze nystagmus (HGN) test that had not been properly recorded by the officer. We affirm. “We review * * * rulings as to whether particular evidence is scientific and is admissible as ‘scientific evi- dence’ ” for errors of law. State v. Owens, 207 Or App 31, 37, 139 P3d 984 (2006), rev den, 342 Or 503 (2007). Defendant was stopped by a police officer for speed- ing. During the stop, the officer observed that defendant’s eyes were watery and bloodshot. The officer also smelled alcohol on defendant’s breath. When asked whether he had anything to drink that night, defendant admitted to having a few beers. Believing there was probable cause to suspect that defendant had committed a DUII, the officer asked him to perform a field sobriety test. The officer adminis- tered three field sobriety tests—HGN, walk-and-turn, and one-leg-stand. The HGN test required the officer to check in each eye for a lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to 45 degrees. Defendant generally performed poorly on all three tests. Although the officer administered all three tests cor- rectly, he did not properly record the HGN test results. In particular, the officer neglected to check either the “yes” or “no” boxes on the field sobriety test result sheet for observ- ing onset of nystagmus prior to 45 degrees. However, the officer did write in the narrative portion of the form that he had observed “four out of six” clues on the HGN, which was an accurate record of defendant’s performance as he did not exhibit onset of nystagmus prior to 45 degrees in either eye. After conducting the field sobriety tests, the officer searched defendant’s car and found an empty beer bottle on the passenger floorboard and an empty can of hard iced tea 720 State v. Ruiz in the glove compartment. Defendant was then arrested, taken to the police station, and interviewed. When asked whether he should have been driving, defendant answered, “No. Not at all.” A breath test showed defendant to have a blood alcohol content (BAC) of .15 percent. Prior to the start of trial, defendant moved in limine to exclude evidence of the HGN test on the basis that the results were improperly recorded and should not be admit- ted under State v. O’Key, 321 Or 285, 899 P2d 663 (1995). The trial court proposed holding a brief OEC 104 hearing when the officer was called to testify at trial to address the HGN test’s results. During direct examination, the officer testified that defendant completed the HGN test. Defendant raised his previous foundational objection, and the trial court held a brief OEC 104 hearing outside the presence of the jury. Defendant explained that on the field sobriety test report, the officer had not recorded whether defendant exhibited the onset of nystagmus prior to 45 degrees, suggesting that either the officer had not performed that part of the test or that he had performed it but did not record the results. The officer testified that he performed all steps of the HGN, he conducted the test the way that he had been trained to do, and that he was qualified to administer the test. The officer explained that he forgot to check the “no” boxes for onset of nystagmus prior to 45 degrees, but he did note that he wrote that defendant exhibited “four out of six” HGN clues in the narrative portion. During closing arguments, the state primarily relied on the results of the breath test. However, the state also framed much of its case around the officer’s testimony regarding defendant’s appearance and performance on the three field sobriety tests. When it came time to instruct the jury, the state requested that the jury be instructed only on the .08-percent-while-driving-per-se theory of DUII, Uniform Criminal Jury Instruction 2703A, and not the adversely-affected-to-a-perceptible-degree theory, Uniform Criminal Jury Instruction 2702. Although the court defined Nonprecedential Memo Op: 354 Or App 718 (2026) 721 “under-the-influence-of-intoxicants,” the jury was instructed only on the former theory. The jury was additionally asked to make a special finding on the aggravating factor that defendant drove with a .15 percent or higher BAC, and the jury found that he had. “[S]ubject to a foundational showing that the offi- cer who administered the test was properly qualified, the test was administered properly, and the test results were recorded accurately, HGN test evidence is admissible in a DUII proceeding to establish that a defendant was under the influence of intoxicating liquor.” O’Key, 321 Or at 322- 23. On appeal, defendant relies on State v. Ingram, 238 Or App 720, 243 P3d 488 (2010) and State v. Rodriguez-Delao, 335 Or App 700, 560 P3d 85 (2024) in support of the proposi- tion that “any acknowledged error in administering the test prevents the state from laying the foundation that O’Key requires.” While those cases do support such a proposition, we note that the HGN evidence was excluded in those cases because the officers improperly administered HGN tests, leading to scientifically invalid results. The present case is distinguishable because the officer here properly adminis- tered the test as he was trained to do, and the results of the test are scientifically valid. In addition to the proper administration of the HGN test, O’Key requires that the results be recorded accurately. 321 Or at 322. Regarding the recording of the HGN test’s results, O’Key states that “[o]fficers are trained to keep a notebook listing performance on all field sobriety tests, including the HGN, to refresh their recollection and to pro- vide defense counsel with an avenue for cross-examination.” Id. at 318. O’Key does not specifically require officers admin- istering an HGN test to record the results of the test in any specific way. Rather, it recognizes that the purpose behind recording the results of the test is to refresh the officer’s recollection and to provide defense counsel with an avenue for cross-examination. Defendant is correct that the officer did not fill out the form for the HGN test as it was designed to be filled out. Two out of six boxes on the form were not properly marked to indicate that all parts of the HGN test 722 State v. Ruiz were performed, but the officer did write in the narrative portion of the form that he observed four out of six signs of intoxication, which seemed to be enough to refresh his recollection and to provide defendant with an avenue for cross-examination. If the officer did not observe signs of intoxication but nonetheless marked the form as observing them, then the recording would be inaccurate and unfairly prejudice the defendant. However, in the present case, the officer did not observe onset of nystagmus prior to 45 degrees in either eye, and neither an examination of the boxes on the form nor its narrative portion suggest that he did. While the test may not have been marked in the way it was intended to be, the recordings that were made accurately document the officer’s observations. Because the HGN test’s recording success- fully allowed the officer to refresh his recollection at trial, and because defendant’s ability to cross-examine the officer was not impaired by the error in recording, the HGN test’s recording here was sufficient under O’Key. The state argues on appeal that even if the trial court erred in admitting the HGN test’s results, any error was harmless. “Under Article VII (Amended), section 3, of the Oregon Constitution, an appellate court may not reverse a criminal defendant’s conviction based on an error—whether preserved or unpreserved—that is harmless.” State v. Ortiz, 372 Or 658, 671, 554 P3d 796 (2024). An error is considered harmless for purposes of that constitutional standard if there was “little likelihood that the error affected the jury’s verdict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Here, the state presented evidence of two other field sobriety tests, both of which defendant performed poorly on. The state also presented results from a breath test that showed defendant had been driving with a BAC of .15 per- cent or higher, and the jury made a special finding accept- ing that fact. Because it made that special finding, the jury found that defendant had a BAC of over .08 percent at the time of driving. We conclude that the results of the HGN test were unnecessary to find the defendant guilty under the legal theory it applied, and that any error in admitting parts of the HGN results did not prejudice defendant’s case. Nonprecedential Memo Op: 354 Or App 718 (2026) 723 Rather, the record suggests that the jury relied primarily on the breath test’s result to convict defendant, and in light of all the other evidence, it is unlikely that the exclusion of the HGN test would have changed the jury’s conclusion. Therefore, even if the trial court did err in admitting the HGN test’s results as evidence, that error was harmless. Affirmed.