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COA rejects argument that margin of error undermined sufficiency of evidence for PAC conviction

Columbia County v. Carter Ray Smits, 2023AP241, 12/7/23, District IV (one-judge decision; ineligible for publication); case activity

Despite the analyst’s testimony that, given the margin of error for the lab result, it was “equally likely” Smits was under as opposed to over the legal limit, COA affirms.

This appeal arises from a prosecution for a first-offense PAC violation, meaning the County only had to prove Smits guilty by “clear and convincing” evidence. (¶11). He was also facing accompanying citations for having an open intoxicant, operating while under the influence, and speeding. (¶2). After pulling Smits over for the speed violation, the arresting officer testified that he observed alcohol containers in Smits’ car. (¶3). After all of the usual observations–including some alleged “clues” observed during field sobriety tests–Smits was arrested for a suspected OWI and his blood collected via a consensual blood draw. (Id.).

A subsequent analysis of that blood sample revealed that Smits was exactly at the legal limit of .08. (¶4). However, that testing allows a “variability” of plus or minus .005 and, as as result, the analyst testified “that it is 95 to 99 percent certain that the
actual result lies somewhere between .075 and .085.” (¶5). She conceded it was “equally likely” that Smits’ BAC was below or above the legal limit. (Id.). After successfully obtaining a directed verdict in his favor on the speeding citation, Smits also moved for a directed verdict on the PAC charge; that motion was denied. (¶6). The jury then acquitted him of the OWI, but convicted on both the PAC and the open intoxicants. (¶8). He moved for a judgment notwithstanding the verdict on the PAC charge, which was also denied. (¶9).

On appeal, Smits argues that his motions with respect to the PAC charge were wrongly denied, as there was insufficient evidence given the uncontroverted margin of error testimony. (¶11). COA disagrees and holds that the other trial evidence–“the officer’s testimony that there were open and empty or nearly empty containers of alcoholic beverages in the vehicle, that Smits was the only person in the vehicle, that the odor of alcohol emitted from both the vehicle and Smits’ person, that Smits had red and glossy eyes, and that Smits showed clues indicating his having consumed intoxicants on two of the three field sobriety tests”–in conjunction with the analyst’s testimony that his BAC could have been above the legal limit, permits a “reasonable inference” consistent with guilt. (¶13). It is also irrelevant that the jury concluded Smits was not intoxicated, given that the PAC conviction does not require the person to be “under the influence.” (¶18).

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