State v. Wagner

662 P.2d 799 (1983)

63 Or.App. 204

STATE of Oregon, Respondent, v. Lester Francis WAGNER, Appellant.

Nos. 81-14559-K, 81-14560-K; CA A25799 (Control), A25861.

Court of Appeals of Oregon.

Decided May 11, 1983.

Argued and Submitted January 7, 1983.

*800 Thomas W. Swint, Grants Pass, argued the cause and filed the brief for appellant.

Linda Acaldo, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

Defendant challenges his conviction for driving while under the influence of intoxicants.[1] ORS 487.540. He seeks a new trial on the ground that, based on the evidence, the trial court erred in taking judicial notice of the fact that "Darvocet 100" is a "controlled substance." We affirm.

At trial, the state proceeded on the theory that defendant had ingested a controlled substance along with alcohol. Defendant testified that he was taking "Darvocet-100." The state asked the court to take judicial notice of the fact that Darvocet-N-100 is a controlled substance within the meaning of ORS 487.540. The court did so. Defendant contends that, because there is no evidence that he was taking Darvocet-N-100, there was nothing before the jury linking him to the drug Darvocet-N-100, and, therefore, the question whether Darvocet-N-100 is a controlled substance was irrelevant.

OEC 201(b) reads, in part, as follows:

"A judicially noticed fact must be one not subject to reasonable dispute in that it is * * *: "* * * "(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." (Emphasis supplied.)

The rule permits a trial court to take judicial notice of facts that are not subject to reasonable dispute because they are capable of accurate verification. The rule takes the facts noticed out of the adversary process and treats them as given facts. Simply stated, it is a short cut to introduce undisputed evidence.

Defendant agrees that Darvocet-N-100 is a controlled substance and that that fact is subject to judicial notice. Defendant's argument is simply that there is no evidence that Darvocet-N-100 was the specific drug he used and, therefore, it was not proper for it to be judicially noticed. Defendant's contention appears to rest on an assumption that there are two different Darvocet-100s: Darvocet-100, the substance he admits ingesting, and Darvocet-N-100.

Here, in support of its request for judicial notice, the state offered the Physician's Desk Reference (PDR) as source material. Defendant does not challenge the accuracy of the PDR. The PDR describes the medical properties of Darvocet and contains other pertinent information about the Darvocet line. "Darvocet" is not a generic name, such as, for example, codeine. It is a registered trademark of the Eli Lilly Company. The PDR lists only that company as a manufacturer of Darvocet. Furthermore, Lilly manufactures only two types of Darvocet tablets: Darvocet-N-50 and Darvocet-N-100.

We hold that the trial court's taking judicial notice that Darvocet-N-100 is a controlled substance fulfilled the requirements *801 of OEC 201(b) and that the fact that the drug is a controlled substance is relevant in this case. Because defendant has not challenged the accuracy of the PDR, its accuracy must be assumed in evaluating defendant's claim on review. If defendant's doctor prescribed a Darvocet tablet, it necessarily was either Darvocet-N-50 or Darvocet-N-100. Those are the only drugs carrying the registered trademark name of "Darvocet." Defendant testified that he was ingesting Darvocet-100. By a process of elimination, therefore, defendant's description of Darvocet-100 had to be a reference to Darvocet-N-100. There is only one rational conclusion to be drawn from an examination of the PDR in conjunction with defendant's testimony. Defendant was referring to Darvocet-N-100 when he said "Darvocet-100." Thus, taking judicial notice was not error.

Affirmed.

NOTES

[1] In this consolidated trial, defendant was also convicted of driving while suspended. However, defendant does not challenge any aspect of that judgment.