Appeal from Circuit Court, Lincoln County. Eugene K. Richardson, Judge. No. 31787.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
James H. Lewelling, Newport, argued the cause for respondent. With him on the brief was Gordon MacPherson, Toledo.
Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.
This is an appeal from an order which suppresses evidence in the form of the results of a breathalyzer test given defendant, in a driving-while-intoxicated case, pursuant to ORS 483.634. The order is based upon a finding by the court that an ampoule containing chemicals used in administering the breath test was qualified as evidence only by hearsay, and its admissibility does not fall within any of the recognized exceptions of the hearsay evidence rule; and that the certificate that purports to certify the accuracy of the use of chemicals in the ampoule contains hearsay.
Defendant was arrested for driving while intoxicated. She consented to and received a breathalyzer test. The court heard testimony from the arresting officer concerning his use of the breathalyzer machine and from Gilbert C. Joyce, a State Health Division chemist who tests equipment used in breath testing.*fn1
Testimony was that ampoules of chemical substance used in the breathalyzer tests are made in large lots by the manufacturer of the breathalyzer machine and distributed to agencies which use the machine. Each lot is given, and each ampoule containing chemicals therefrom is stamped with, a common identifying number. This occurred in the instant case, the common number being 822. Twenty-five to 50 ampoules from any lot which is supplied to police stations in Oregon for use in breathalyzer machines are sent by the manufacturer directly to the State Health Division, which tests them for accuracy. The state had tested and found accurate ampoules numbered 822 which it had received from the manufacturer. Thus, in the case at bar, when an ampoule numbered 822 was used, the state had tested for accuracy one or more ampoules which the manufacturer had given the same number.
The principal point made by the defendant upon which the trial court agreed is that it is hearsay, not subject to cross-examination, that the ampoules tested by the State Health Division come from the same lot as those used in the machine.
In State v. Baker, 56 Wash 2d 846, 355 P2d 806 (1960), the point was made with reference to a breathalyzer test that the purity of the chemicals was proven only by hearsay. The court said:
"The ampoules are sealed glass containers which are made and compounded by the same company which makes the breathalyzer machine. The ampoule cannot be tested as to chemical content without being broken, and once it is broken it can no longer be used. Thus, it was impossible to check the particular test ampoule that was used in the test on appellant. However, the state's evidence shows that the ampoules are shipped from the manufacturer in batches and each batch has a control number,
which is stamped on each and every ampoule in that particular batch. Every time a new batch is received, Lt. Whitman spot checks at least six ampoules from that particular batch. During the course of his work, Lt. Whitman has tested hundreds of ampoules and has ...