State v. Dave

176 P.3d 424, 217 Or. App. 509, 2008 Ore. App. LEXIS 65

Opinion

PER CURIAM

Defendant was convicted of unlawful possession of a Schedule II controlled substance. Former ORS 475.992 (2003), renumbered as ORS 475.840 (2005). On appeal, defendant argues that the trial court erred in denying her motion in limine to exclude a crime laboratory report on the ground that ORS 475.235 unconstitutionally shifted the burden of production to defendant. The state concedes that, under State v. Birchfield, 342 Or 624, 157 P3d 216 (2007), the trial court erred in admitting the report, but argues that the error was harmless. On the record before us, we agree with the state’s concession. However, we disagree that the error was harmless, inasmuch as a central issue at trial was whether the state proved that the substance found in defendant’s possession was a controlled substance.

Reversed and remanded.