State v. Hemkin

Court of Appeals of Oregon

State v. Hemkin

792 P.2d 483, 102 Or. App. 79, 1990 Ore. App. LEXIS 569

CourtCourt of Appeals of Oregon

DecidedJune 6, 1990

Docket892104; CA A62153

StatusPublished

Cited by2 cases

This text of 792 P.2d 483 (State v. Hemkin) 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.

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State v. Hemkin, 792 P.2d 483, 102 Or. App. 79, 1990 Ore. App. LEXIS 569 (Or. Ct. App. 1990).

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Opinion

RICHARDSON, P. J.

Defendant was charged with driving under the influence of intoxicants. ORS 813.010. Before trial, he moved to suppress evidence of the Intoxilyzer test that was administered after his arrest. The court granted the motion, because the administering officer failed to copy the test result onto the Intoxilyzer checklist. The state appeals, and we reverse.

The facts relevant to defendant’s motion are not disputed. Defendant was given a breath test after his arrest for driving under the influence of intoxicants. The officer complied with all test procedures, but he did not copy the test result shown on the evidence card onto the Intoxilyzer checklist. The reading on the evidence card showed a .10 blood alcohol level.

The court ruled that, because the officer failed to copy the reading onto the checklist as specified by OAR 257-30-020(1) and thereby failed to prepare a written report pursuant to ORS 813.160(3),¹ the requirements for admission of the test result had not been met.

We have tried to make it clear that the Intoxilyzer checklist is merely a means to record how the officer performed the breath test and that its completion or lack of it does not necessarily affect the validity of the test results. State v. Holcomb, 99 Or App 156, 781 P2d 396 (1989); State v. Olson, 88 Or App 271, 744 P2d 1327 (1987). In State v. Roe, 95 Or App 477, 770 P2d 69, rev den 308 Or 142 (1989), the trial court suppressed the Intoxilyzer test result, because the officer did not write down the correct serial number of the machine on the checklist. We reversed, because

“it was preposterous for the trial judge to conclude that an incorrect writing of the serial number on the checklist is by itself a basis for suppressing the results of this Intoxilyzer test. [82]*82It has nothing to do with performance of the test or its accuracy as evidence. State v. Olson, 88 Or App 271, 744 P2d 1327 (1987).” 95 Or App at 480.

Here, the trial court distinguished Roe, because filling out the checklist was a “mandatory step prior to the admissibility of this evidence.” Our conclusion in Roe had nothing to do with the relative necessity of a particular testing procedure. It had to do with the fact that the failure to comply with a step in administering the breath test is not a basis to suppress if the accuracy of the test result is not jeopardized. The absence of the reading on the checklist has no bearing on the performance of the test or its- accuracy as evidence. The court erred in suppressing the results.

Reversed and remanded.

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RICHARDSON, P. J.

Defendant was charged with driving under the influence of intoxicants. ORS 813.010. Before trial, he moved to suppress evidence of the Intoxilyzer test that was administered after his arrest. The court granted the motion, because the administering officer failed to copy the test result onto the Intoxilyzer checklist. The state appeals, and we reverse.

The facts relevant to defendant’s motion are not disputed. Defendant was given a breath test after his arrest for driving under the influence of intoxicants. The officer complied with all test procedures, but he did not copy the test result shown on the evidence card onto the Intoxilyzer checklist. The reading on the evidence card showed a .10 blood alcohol level.

The court ruled that, because the officer failed to copy the reading onto the checklist as specified by OAR 257-30-020(1) and thereby failed to prepare a written report pursuant to ORS 813.160(3),¹ the requirements for admission of the test result had not been met.

We have tried to make it clear that the Intoxilyzer checklist is merely a means to record how the officer performed the breath test and that its completion or lack of it does not necessarily affect the validity of the test results. State v. Holcomb, 99 Or App 156, 781 P2d 396 (1989); State v. Olson, 88 Or App 271, 744 P2d 1327 (1987). In State v. Roe, 95 Or App 477, 770 P2d 69, rev den 308 Or 142 (1989), the trial court suppressed the Intoxilyzer test result, because the officer did not write down the correct serial number of the machine on the checklist. We reversed, because

“it was preposterous for the trial judge to conclude that an incorrect writing of the serial number on the checklist is by itself a basis for suppressing the results of this Intoxilyzer test. [82]*82It has nothing to do with performance of the test or its accuracy as evidence. State v. Olson, 88 Or App 271, 744 P2d 1327 (1987).” 95 Or App at 480.

Here, the trial court distinguished Roe, because filling out the checklist was a “mandatory step prior to the admissibility of this evidence.” Our conclusion in Roe had nothing to do with the relative necessity of a particular testing procedure. It had to do with the fact that the failure to comply with a step in administering the breath test is not a basis to suppress if the accuracy of the test result is not jeopardized. The absence of the reading on the checklist has no bearing on the performance of the test or its- accuracy as evidence. The court erred in suppressing the results.

Reversed and remanded.

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792 P.2d 483, 102 Or. App. 79, 1990 Ore. App. LEXIS 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hemkin-orctapp-1990.

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