2007 ORS 813.300¹

Use of blood alcohol percentage as evidence

• • percentage required for being under the influence

Notes of Decisions

Under Former Similar Statute

Court must make preliminary determina­tion as to whether witness had valid current permit to operate breathalyzer at time of test, and com­ment of court that of­fi­cer was qualified to operate machine did not invade province of jury. State v. Winters, 34 Or App 157, 578 P2d 439 (1978), Sup Ct review denied

Blood test results were admissible in trial for manslaughter though performed by criminologists not in pos­ses­sion of valid permit re­quired by ORS 487.815 (now ORS 813.160 (Methods of conducting chemical analyses)), as ORS 487.820 (now ORS 813.320 (Effect of implied consent law on evidence)) permits introduc­tion of any competent, relevant evidence in pro­ceed­ing other than for driving under influence of intoxicants notwithstanding viola­tions of implied con­sent law. State v. Heintz, 34 Or App 175, 578 P2d 447 (1978) as modified by35 Or App 155, 580 P2d 1064 (1978), aff'd 286 Or 239, 594 P2d 385 (1979)

Defendant may offer testimony of non-expert witness relating to any or all common signs of intoxica­tion for purpose of attacking accuracy of blood alcohol test without first laying founda­tion by expert witness. State v. Clark, 286 Or 33, 593 P2d 123 (1979)

In order for test results to determine blood alcohol level to be admissible under this sec­tion they must be performed by per­son with valid permit from Health Division. State v. Hilton, 49 Or App 927, 620 P2d 970 (1980), Sup Ct review denied

Use of term "motor vehicle" in this sec­tion instead of "vehicle" used elsewhere in vehicles statutes did not preclude admission of breathalyzer test results where defendant was coasting vehicle down hill without engine running. State v. Fisher, 57 Or App 776, 646 P2d 652 (1982)

Fact that legislature has adopted certain percentage of alcohol in the blood as legally constituting being under influence of intoxicants is not relevant circumstantial evidence in civil case to show driver was visibly intoxicated. Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985)

In General

Where, at hearing, police of­fi­cer testified that all statutory and administrative require­ments, including 15-minute pretest period had been met and trial judge was satisfied with proof except for failure of of­fi­cer to testify to precise time when observa­tion began and sample was taken, of­fi­cer's testimony that test was performed in accordance with such require­ments was substantial evidence sufficient to support hearings of­fi­cer's orders. Andries v. MVD, 88 Or App 425, 745 P2d 809 (1987)