State v. Leinweber

OAR 257-030-0130 requires that a breath test operator “is certain that the subject has not * * * vomited, or regurgitated * * * for at least fifteen minutes before taking the test.”

Defendant appealed a conviction for DUII. Defendant assigned error to the trial court’s denial of his motion to suppress his breath test results. On appeal, Defendant argued that the evidence was inadmissible because the officer who administered the test failed to ensure that Defendant had not vomited or regurgitated into his mouth before the test. In response, the State argued that the rule requiring the officer to “ensure” the test was untainted does not mean absolutely certain, but rather “reasonable under the circumstances.” OAR 257-030-0130 requires that a breath test operator “is certain that the subject has not * * * vomited, or regurgitated * * * for at least fifteen minutes before taking the test.” The Court reviewed the regulation by inquiring whether the officer employed cautions that the statute required. The Court held that the trial court erred in relying on the officer’s testimony, that they expected the breath test machine to recognize a contaminated sample after the test was complete. According to the Court, the meaning of the regulation was not satisfied because the text requires a contemporaneous certainty and the officer testified that he was certain the sample was not contaminated because the breath test machine would pick it up in the sample after the test was complete. Reversed and remanded.