State v. Torrey
| Decision Date | 07 February 1978 |
| Citation | 32 Or.App. 439,574 P.2d 1138 |
| Parties | STATE of Oregon, Respondent, v. William David TORREY, Appellant. |
| Court | Oregon Court of Appeals |
Gary K. Jensen, P. C., Eugene, argued the cause and filed the brief for appellant.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.
Before TANZER, P. J., and JOHNSON and ROBERTS, JJ. JOHNSON, Judge.
Defendant appeals his conviction following a jury trial for the crime of driving while under the influence of intoxicants, ORS 487.540, which provides:
The state's principal evidence at trial was a breathalyzer reading of .22 percent blood-alcohol. Defendant assigns as error the court's instructions with respect to his blood-alcohol content, and the admission of evidence of his prior conviction for the purpose of enhancing the penalty for the crime.
Defendant first contends that the court erred in instructing the jury as follows:
"The law further provides that if you find that the amount of alcohol by weight in Defendant's blood at the time of driving as shown by chemical analysis of the Defendant's breath was .10 percent or more, the Defendant is guilty of the crime of driving under the influence * * * ."
He maintains that in so instructing, the court invaded the province of the jury by creating a conclusive presumption of guilt precluding the jury from considering evidence indicating that his driving was not in fact impaired due to his consumption of alcohol. Defendant bases his argument on the terms of ORS 487.545 which provide:
Defendant requested that the court instruct the jury in the terms of subsection (4) of ORS 487.545 and the court refused. We construe ORS 487.540 and 487.545 as indicating that a finding of .10 percent blood-alcohol constitutes a violation of the statute. Evidence is admissible to show that the chemical analysis of the defendant's blood was inaccurate. Here no such evidence was offered by the defendant and therefore the trial court was correct in its instructions.
Prior to the 1975 revisions to the Oregon Vehicle Code, 1 driving while under the influence of intoxicants was punishable as two separate offenses: driving under the influence of intoxicating liquor or drugs, former ORS 483.992(2), 2 and driving with a blood- alcohol content of .15 percent, former ORS 483.999(1). 3 Under the latter statute, the mere fact of driving with a blood alcohol content of .15 percent was a violation of the statute, regardless of whether or not the individual was driving "while under the influence." A defendant charged under former ORS 483.999(1) could defend against the charge by presenting evidence that the breathalyzer results were inaccurate. See State v. Michener, 25 Or.App. 523, 550 P.2d 449, rev. den. (1976).
Former ORS 483.642, the predecessor to ORS 487.545, provided:
It is apparent from the language of that statute and the statutory scheme prior to 1975 that the only criminal action to which ORS 483.642 applied was a prosecution under former ORS 483.992(2) wherein the state was relying upon a breathalyzer reading of less than .15 percent to convict the defendant of driving under the influence of intoxicating liquor. The phrase "under the influence" appears only in former ORS 483.992(2) and would not pertain to a prosecution under former ORS 483.999(1) because driving under the influence was not an element of the crime.
The 1975 revisions to the Vehicle Code repealed all three statutes: former ORS 483.642, 483.992 and 483.999. What were formerly two separate offenses under ORS 483.992(2) and 483.999(1) were consolidated into alternative ways of committing the new offense or infraction of driving while under the influence of intoxicants, ORS 487.540. Proposed Oregon Vehicle Code, 68, 69, Commentary, § 87 (1975). In addition, the level of blood-alcohol constituting the offense or infraction was lowered from .15 percent to .10 percent. Although the language of ORS 487.540 and 487.545 differs slightly from their predecessors, former ORS 483.642, 483.992 and 483.999, the legislative history indicates an intent to retain the same evidentiary rules. See Proposed Oregon Vehicle Code, 69, Commentary, § 88 (1975).
Subsection (4) of ORS 487.545 on its face is ambiguous. It states:
"(4) Nothing in this section is intended to limit the introduction of any competent evidence bearing upon the question of whether or not a person was under the influence of intoxicants." (Emphasis supplied.)
The phrase "under the influence of intoxicants" is merely the title of the offense described in ORS 487.540(1). The elements of the offense are set forth in the alternative in paragraphs (a), (b) and (c) of ORS 487.540(1). Under paragraph (b), the elements are driving "under the influence of intoxicating liquor, a dangerous drug or narcotic drug." Under alternative paragraph (c), the elements are "under the influence of intoxicating liquor and a dangerous drug or narcotic drug." Neither paragraph uses the term "intoxicants." Under paragraph (a), the only element is that the driver have ".10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood, urine or saliva * * * ." The only conclusion that we can draw is that subsection (4) of ORS 487.545 was intended to permit the introduction of competent evidence relevant to that paragraph under which the defendant is being tried. Otherwise, ORS 487.545 would be internally inconsistent. Defendant contends that he can introduce, and that the jury should consider, evidence that he was not under the influence of intoxicating liquor to refute a charge under paragraph (a) of ORS 487.540(1). This would not only render that paragraph meaningless, but is directly contrary to subsection (2) of ORS 487.545, which provides:
"(2) Not less than .10 percent by weight of alcohol in a person's blood constitutes being under the influence of intoxicating liquor." (Emphasis supplied.) 4
Here, defendant was charged by citation generally with "driving while under the influence of intoxicants." At trial, the state introduced evidence relevant to prove the commission of the offense alternatively under paragraph (a) or (b) i.e. evidence of a breathalyzer reading of .22 percent blood-alcohol and evidence that defendant's driving at the time of his arrest was impaired. Under the circumstances, defendant was entitled to introduce any competent evidence relevant to refute the evidence offered by the state under either paragraph (a) or (b). However, because defendant was entitled to introduce evidence under both paragraphs does not invalidate the instruction. The jury was in effect merely instructed that if they find the elements specified in paragraph (a) of ORS 487.540(1), then defendant is guilty of the offense of driving "under the influence of intoxicants" and they need not consider evidence relevant to paragraph (b) elements.
Defendant also assigns as error the court's instruction to the jury that if they found his blood-alcohol content was at a certain level when measured a...
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