Appeal from Circuit Court, Clatsop County. Thomas E. Edison, Judge. No. 28777.
Nicholas D. Zafiratos, Astoria, argued the cause and filed the brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.
Defendant appeals from a conviction under ORS 483.999 (1) of driving a motor vehicle when the content of alcohol in his blood was more than .15 per cent. A breathalyzer test administered 33 minutes after his arrest showed that he then had .23 blood-alcohol content. The arresting police officer in answer to questions described what happened after the arrest. On neither direct nor cross-examination was he asked, and he did not indicate, whether defendant had any opportunity to or did ingest alcohol in any form between the arrest and the breathalyzer test. There was no other evidence produced on the same subject, although the defendant took the stand.*fn1
The only assignment of error is that the case should not have been submitted to the jury because there was insufficient evidence to show what the defendant's blood-alcohol content was at the time he was driving the automobile. Defense counsel expressed his theory in this regard in support of his motion for acquittal:
"* * * Some expert testimony to relate the fact back to what it [blood-alcohol content] was at the time he was driving. The question is not, Your Honor, what it was in the jailhouse but what it was when he was driving. * * * The jury will be allowed to speculate purely and simply.
"You're asking the jury to speculate and say simply because 33 minutes later it was .23 it must have been .15 or over at that time * * *."
"(1) Any person who drives * * * when that person has .15 percent or more by weight of alcohol in his blood as shown by chemical analysis * * * made pursuant to ORS 483.634 to 483.646 [Oregon's Implied Consent Law] shall be punished * * *.
"(2) For purposes of ORS 482.430, a conviction under this section shall be considered to be a conviction for driving under the ...