State v. Jubie
State v. Jubie
Opinion of the Court
The State of Oregon appeals from a pretrial order suppressing evidence of defendant’s Intoxilyzer test result in this prosecution for driving under the influence. ORS 138.060(3). We reverse and remand for reconsideration.
This case involves a situation where the operator of the test relied on another officer to perform the 15-minute observation period before the test was administered. The trial court ruled that the requirement of OAR 257-030-0070(2)
In State v. Tynon, 152 Or App 693, 955 P2d 250 (1998), rev den 328 Or 365 (1999), we held that the fact that there were no express communications between the operator of an Intoxilyzer test and the observer of the defendant did not preclude a finding that, under the totality of the circumstances, the operator had formed the belief required by the rule. We said that the rule requires that the operator have a subjective belief that the rule’s requirements were met and that that belief must be objectively reasonable. We also disavowed any suggestion that, under the holding in McVay, “the
The state also argues that, even if the rule’s requirement was not met, admission of the test result is required under ORS 136.432, which provides that “[a] court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision” subject to certain exceptions.
Reversed and remanded.
OAR 257-030-0070 provides, in part:
“(2) Pre-Test Requirement:
“(a) The operator is certain that the subject has not taken anything by mouth (drinking, smoking, eating, taking medication, etc.), vomited, or regurgitated liquid from the stomach into mouth, for at least fifteen minutes before taking the test;
“(b) There is no requirement that the operator be the person who makes observation of the subject. The person performing the Pre-Test Requirement (observation period) need not possess a permit to test the alcoholic content of blood.”
The evidence appears to reflect that defendant was watched continuously throughout the 15-minute period by the observer and that the operator was in the presence of defendant during that time.
ORS 136.432 provides:
“A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by:
“(1) The United States Constitution or the Oregon Constitution;
“(2) The rules of evidence governing privileges and the admission of hearsay; or
“(3) The rights of the press.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.