Appeal from Circuit Court, Multnomah County. Alan F. Davis, Judge. No. C-73-03-0954.
Lee Johnson, Attorney General, John W. Osburn, Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, for appellant.
No appearance by respondent.
Langtry, Presiding Judge, and Foley and Thornton, Judges.
This is a state appeal from a circuit court dismissal of a prosecution for driving with .15 per cent or more of alcohol in blood under ORS 483.999. Defendant has not filed a brief in this court.
Defendant had been charged in separate complaints with driving while under influence of alcohol (ORS 483.992 (2)), hereafter DUIL, and the charge under ORS 483.999 in the district court. The complaints arose from the same driving at the same time and place. In district court jury was waived and the court found defendant not guilty of the DUIL charge and guilty of the over .15 per cent charge. Defendant appealed the conviction to the circuit court.
The basis of the circuit court dismissal is recited in the substantive part of the trial order:
"* * * That as a pretrial motion, the defendant
moved to dismiss the within matter for the reason that the district court of Multnomah County on March 19, 1973, had found the defendant Not Guilty of the crime of DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR and that ORS 483.999 is an enhanced penalty provision only, the court having heard arguments of respective counsel and having heard testimony and accepted stipulation of facts by the party, the court makes the following FINDINGS OF FACT and CONCLUSIONS OF LAW.
"1. The district court of Multnomah County on March 19, 1973, found the defendant guilty of ORS 483.992 [sic].*fn1
"2. That the district court of Multnomah County on March 19, 1973, found the defendant not guilty of DRIVING UNDER THE INFLUENCE OF ...