PORTLAND, Ore. (AP) — The Oregon Court of Appeals has overturned the conviction of a man whose blood alcohol content tested just above the legal limit.
The court said last week that it was possible John Charles Hedgpeth was still legally sober when he was stopped on his motorcycle nearly four years ago by a state trooper, The Oregonian /OregonLive reported.
The judges said an hour and 45 minutes passed from when he was detained to when he was tested, and it was possible his blood alcohol level had risen during that time. It also was possible his blood alcohol level was higher when he was detained, but there wasn’t enough evidence to prove which theory was true, they said.
A breath test administered at a police station in 2014 registered a blood alcohol level of 0.09 percent, just over the legal limit of 0.08 percent. Hedgpeth was convicted of driving under the influence of intoxicants.
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Handheld devices that measure alcohol content by the side of the road are an option in some states, but Oregon’s Legislature hasn’t approved those devices for police use.
Hedgpeth’s attorney, Paul Burgett, said the nearest breath-test device in some rural parts of the state could be a considerable drive away.
Oregon prosecutors can also try to prove someone was driving under the influence of intoxicants without a positive blood alcohol test by showing that a police officer observed the defendant swerving or had failed sobriety tests. In Hedgpeth’s case, the trooper pulled him over because he wasn’t wearing a helmet, not for bad driving.
Two of the 13 appeals court judges, Steven Powers and Joel DeVore, dissented with the majority opinion.
Information from: The Oregonian/OregonLive, http://www.oregonlive.com