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Oregon v. Swarengin

February 26, 1973

STATE OF OREGON, RESPONDENT,
v.
THOMAS JAMES SWARENGIN, APPELLANT



Appeal from Circuit Court, Lane County. Edward Leavy, Judge. No. 72-1665.

Alice M. Plymell, Eugene, for appellant.

Lee Johnson, Attorney General, John W. Osburn, Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, for respondent.

Schwab, Chief Judge, and Langtry and Foley, Judges.

Schwab

Defendant was convicted in the district court and, following trial de novo, in the circuit court of driving a motor vehicle with more than .15 percent alcohol in his blood in violation of ORS 483.999(1).*fn1

On appeal defendant contends that it was error for the circuit court to permit the arresting officer to testify concerning defendant's performance on certain manual dexterity ("field sobriety") tests at the scene of his arrest. Defendant reasons that while such evidence would be relevant in a driving-under-the-influence trial, it is irrelevant when the prosecution is for the separate offense of driving with more than .15 percent alcohol in the blood.

We hold the arresting officer's testimony relevant and admissible. While it may have little probative value, it has some tendency to support an inference that defendant's blood-alcohol level at the time of his arrest was not substantially different from his blood-alcohol level when he took a breathalyzer test about an hour later. See, State v. Kohlasch, 11 Or App 459, 502 P2d 1158 (1972). Even the limited probative value of this testimony is not outweighed by any possible prejudice where, as here, the jury was clearly apprised by both the instructions of the court and the arguments of both counsel that defendant was charged with driving

with a blood-alcohol level of .15 percent or more, and not with driving under the influence of intoxicating liquor.

Defendant's remaining assignments of error are resolved by State v. Kohlasch, supra.

Affirmed.

Disposit ...


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