State v. Malpass

Defendant was charged with the traffic infraction of driving under the influence of intoxicants, ORS 487.540. Prior to trial he moved to suppress the results of a breathalyzer test administered to him on the ground it was administered without his consent. The motion was granted and the state appeals, ORS 138.060(3).

At the hearing on the motion, the arresting officer testified that after taking defendant into custody he advised him he would be taken to the county jail and given an opportunity to take a breath test. At the jail, the officer testified, that with little discussion he said to…