“Because the Eighth Amendment does not delimit the denial of bail to capital offenses, Congress as well as the states could provide that other serious noncapital crimes are entitled to bail — subject, of course, to due process constraints.”
How later courts described this case
- “Because the Eighth Amendment does not delimit the denial of bail to capital offenses, Congress as well as the states could provide that other serious noncapital crimes are entitled to bail — subject, of course, to due process constraints.”
Written by the judges who cited it.
The opinion
WARDEN, J.,
concurring in part and dissenting in part.
I concur with the majority that the conviction in this case must be reversed, because defendant did not waive her right to a jury trial in writing. I disagree, however, with the conclusion that the result of the test of defendant’s breath is admissible without showing that the provisions of ORS 487.815(3)(c) have been complied with and, therefore, dissent from that part of the majority opinion.
The amount of alcohol, if any, in a person’s blood at a given time is a question of fact. The purpose of the requirements written into ORS 487.815 is to ensure that, when the determination of a person’s blood alcohol level is made by testing his breath, the determination is accurate, that is, it is a fact. Before a fact that is the result of scientific testing is admissible, it must be established that correct testing procedures were followed. This is true for any party in any kind of case; prosecutions for DUII are not an exception. The majority would require the state to meet a stricter standard for admissibility of its scientific evidence than that required of the defendant.
Without citing any authority, the majority asserts that in a DUII trial a defendant may put in evidence the results of an independent chemical or blood test “without certification or approval of the test administrators or their methods and machinery.” That statement is at least misleading and, I submit, is inaccurate. Before such evidence may be admitted, a defendant must establish the time and place at which a sample of his blood or other bodily substance was taken, that the time it was taken was reasonably near the time of arrest, that it was taken by a qualified person, that it was analyzed, that the sample *665 analyzed was the sample taken near the time of the arrest, that the person who conducted the analysis was qualified to do so, that the procedures used in the analysis were procedures recognized as scientifically reliable, and that the procedures were correctly followed. 1
The majority would treat the evidence of a low level of blood alcohol shown by a breath test as if it were an admission by the state against its interest. It is not.
I would hold that the results of a breath test are available to the defendant, as well as to the state, on the same terms; that is, before they are admitted, a foundation showing compliance with the requirements of ORS 487.815 must be established.
Testimony by Senator Elfstrom before the House Judiciary Committee in support of amendments adopted as part of house Bill 1111 (the Implied Consent law) during the 1965 Legislative Session concerned the accuracy of the equipment to be used in breath testing. Senator Elfstrom’s testimony was, in part, as follows:
“You cannot buy a pound of meat from your butcher until the state has certified that the scales are accurate. You cannot buy a gallon of gas for your car unless the pump carries the certification of the scales by the state. Yet, this bill proposes that citizens of Oregon be placed in jeopardy of criminal conviction and imprisonment on the evidence of equipment that may have had no testing or adjustment over a period of years. Imagine what a good defense lawyer could do to the arguments advanced by the prosecutor under these circumstances.
“The bill itself should provide the safeguard that the equipment will be regularly tested and adjusted for accurate results.
“I will not take the time for a recitation of the importance authorities attach to this matter of regular inspection. In the literature I have read, there is unanimous agreement with the conclusion of the American Medical Association that * * * and I quote * * * ‘The periodic checking of apparatus and its operation is vital.’
“This is the second amendment I propose:
“The State Board of Health shall: ‘Test and certify the accuracy of equipment to be used by police officers for chemical analyses of a person’s breath before regular use of such equipment and periodically thereafter at intervals of not more than 60 days, such tests and certification to be conducted by trained technicians.’ ”