STATE v. JOHNSON (2021)

Defendant appeals a judgment of conviction for, among other offenses, driving under the influence of intoxicants, ORS 813.010. He contends that the trial court erred in denying his pretrial motion in limine that sought to exclude the state's toxicology report (showing that defendant's blood samples tested positive for methadone, amphetamines, and methamphetamine) and the testimony of the laboratory supervisor who signed the report. In defendant's view, that evidence would, if used at trial, violate his confrontation rights under the Sixth Amendment to the United States Constitution. That is because, according to defendant, it was the laboratory bench chemists—not the supervisor—who handled and tested defendant's blood samples, and the Confrontation Clause does not permit the admission of a scientific report if its authors do not appear and face cross-examination at trial.

Before defendant's trial began, the trial court and the parties discussed the motion in limine. The state gave its view of the cases on which defendant relied to support his confrontation-rights argument and the role of the bench chemists and supervisor with regard to the toxicology report's results. The trial court denied defendant's motion, saying that, given that the state had a different view of what the bench chemists did in the course of preparing the toxicology report, it would not exclude the supervisor's testimony or the toxicology report at that time. The court said that any objections defendant had about confrontation rights could be raised during the course of the lab supervisor's testimony. During trial, when the lab supervisor did testify, defendant did not make any objections to the supervisor's testimony on the basis that she was not the report's author and that his inability to confront the actual author of the report violated his rights under the Confrontation Clause. We conclude that, when the record developed enough to provide the factual basis for the court to rule on defendant's confrontation-rights argument, defendant needed to object to the lab supervisor's testimony and the toxicology report at that time to preserve the claim that he now raises on appeal. ORAP 5.45(1). We therefore do not consider his claim of error on appeal and affirm.

Affirmed.

PER CURIAM