STATE v. ADDISON, 109 Or. App. 479 (1991)

818 P.2d 1300

STATE OF OREGON and City of Gresham, Appellants, v. MARVIN JAMES ADDISON, Respondent.

P137531; CA A68818Oregon Court of Appeals.Submitted on record and appellants’ brief August 27 1991.
Reversed and remanded October 30, 1991

Appeal from District Court, Multnomah County, Martin Faveluke, Judge pro tempore.

Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Jonathan H. Fussner, Assistant Attorney General, Salem, filed the brief for appellant.

John Powers, Portland, waived appearance for respondent.

Before Richardson, Presiding Judge, and Joseph, Chief Judge, and Deits, Judge.

PER CURIAM

Reversed and remanded.

Page 480

PER CURIAM

The state appeals a pre-trial order suppressing the result of an Intoxilizer test in this driving under the influence of intoxicants case. ORS 813.010. Defendant has waived appearance on appeal and concedes that, the state having made a prima facie showing that the officer administering the test complied with the administrative rules governing it and defendant having offered no evidence that he had vomited or regurgitated during the pre-test period, the court erred in suppressing the result. We accept the concession.

Reversed and remanded.

Page 481