State v. Elkins
This text of 815 P.2d 719 (State v. Elkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Defendant appeals his convictions of two separate charges of driving while under the influence of intoxicants. The court placed him on probation; one condition was that he “submit to breath and blood tests.” Defendant contends that that condition does not comply with ORS 137.540(2)(k), because it does not require that the tests be administered only on the request of a probation officer having reasonable grounds to believe that the tests would disclose evidence of a probation violation.
The state concedes that the condition, as written, is inadequate, but contends that the oral pronouncements of the trial court complied with the statute and that we should modify the written judgment to comport with the expressed intention of the court. We conclude, however, that the trial court should be given the opportunity to impose a lawful sentence and condition of probation and that an appropriate record of the new sentence should be made.
Convictions affirmed; condition of probation that defendant submit to breath and blood tests vacated; remanded for resentencing.
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Cite This Page — Counsel Stack
815 P.2d 719, 108 Or. App. 564, 1991 Ore. App. LEXIS 1257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-elkins-orctapp-1991.