86-61126; CA A43428 | Or. Ct. App. | Aug 26, 1987
In this DUII case, the state appeals from a pretrial order suppressing evidence of the results of an Intoxilyzer test. We reverse.
After Sergeant Hein had arrested defendant, and while they were enroute to the jail, defendánt put chewing tobacco in his mouth. He spat out most of it after arriving at the jail. Hein watched defendant for more than 15 minutes before giving him the test. During that time, defendant put nothing in his mouth, and Hein denied his request to rinse out his mouth. Defendant had bits of chewing tobacco in his mouth during the test.
The court granted defendant’s motion to suppress the results of the test on the ground that OAR 257-30-020(l)(b) required Hein to allow defendant to rinse the tobacco from his mouth. The rule provides:
“The operator must make certain the subject has not taken anything by mouth, (drinking, smoking, eating, taking medication, etc.) vomited, or regurgitated liquid from his stomach into his mouth, for at least 15 minutes before taking the test.”
Nothing in the rule requires that a DUII suspect be allowed to rinse his mouth during the pre-test waiting period. In fact, the rule prohibits that.
Reversed and remanded.