State v. Stewart

Court of Appeals of Oregon

State v. Stewart

206 P.3d 1104, 227 Or. App. 632, 2009 Ore. App. LEXIS 301

Court of Appeals of Oregon·Decided April 22, 2009·No. 210701879; A135932·Published

Opinion

PER CURIAM

Defendant appeals a judgment of conviction for driving under the influence of intoxicants. ORS 813.010. He contends that the trial court erred in admitting the results of an Intoxilyzer 8000 breath test, because the test procedures outlined in OAR 257-030-0130 were not followed. The state concedes that the court erred in admitting the test results over defendant’s objection, because one of the pretest requirements was not met in this case — namely, that the tester be certain that the subject “has not taken anything by mouth” for 15 minutes. We agree and accept the concession. State v. Barletta, 188 Or App 113, 71 P3d 166 (2003).

Reversed and remanded.

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PER CURIAM

Defendant appeals a judgment of conviction for driving under the influence of intoxicants. ORS 813.010. He contends that the trial court erred in admitting the results of an Intoxilyzer 8000 breath test, because the test procedures outlined in OAR 257-030-0130 were not followed. The state concedes that the court erred in admitting the test results over defendant’s objection, because one of the pretest requirements was not met in this case — namely, that the tester be certain that the subject “has not taken anything by mouth” for 15 minutes. We agree and accept the concession. State v. Barletta, 188 Or App 113, 71 P3d 166 (2003).

Reversed and remanded.

State v. Stewart, 206 P.3d 1104, 227 Or. App. 632, 2009 Ore. App. LEXIS 301 (Or. Ct. App. 2009).

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Opinion

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