State v. Stewart

FILED: April 22, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOHN JOSEPH STEWART,

Defendant-Appellant.

Lane County Circuit Court
210701879
A135932

Darryl L. Larson, Senior Judge.

Submitted on December 05, 2008.

Peter Gartlan, Chief Defender, Legal Services Division, and Elizabeth Ann Corbridge, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Robin Rojas McIntyre, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Wollheim, Judge, and Sercombe, Judge.

PER CURIAM

Reversed and remanded.

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.