State v. Bevan

Defendant appeals from a judgment of conviction for driving while under the influence of intoxicants (DUII), ORS 813.010. On appeal, defendant makes eight assignments of error. We reject without discussion defendants other assignments of error and write to address only the admission of certain scientific evidence, namely, testimony by a police officer concerning the vertical gaze nystagmus (VGN) test. We review for errors of law. State v. Hernandez, 227 Or App 319, 321, 206 P3d 197 (2009). Because we conclude that the evidence concerning the VGN test should not have been admitted and that the error was not harmless, we reverse and remand.