State v. Holder

814 P.2d 564, 108 Or. App. 484, 1991 Ore. App. LEXIS 1228

Opinion

PER CURIAM

Defendant was convicted of driving under the influence of intoxicants. ORS 813.010. The trial court sentenced her to 30 days in jail, with 25 days suspended, and placed her on three years probation. Defendant contends that the trial court lacked authority to impose a sentence and also place her on probation. Although she did not object to the sentence below, we exercise our discretion to review the apparent error, because it goes to the sentencing authority of the court. ORAP 5.45(2); State v. Vasby, 101 Or App 1, 788 P2d 1024 (1990); State v. Braughton, 28 Or App 891, 561 P2d 1040 (1977). The state concedes error, and we accept the concession.

In her second assignment, defendant challenges the condition of probation that requires her to submit to blood, breath or urine tests on requests by police. On remand, if the trial court conditions probation on submitting to those tests, the condition must comply with ORS 137.540.

Conviction affirmed; sentence vacated; remanded for resentencing.