BATCHELOR v. STATE

JOSEPH, P.J.

This is an appeal by the state, pursuant to ORS 138.650, from an order granting post-conviction relief from plaintiff's March 21, 1979, conviction on a charge of driving under the influence of intoxicants. Plaintiff's petition alleged a denial of due process under ORS 138.530(1)(a) in the refusal of the district court judge to admit results of a breathalyzer examination when the state was attempting to prove plaintiff's guilt on a "conduct theory." The trial court here agreed, vacated the judgment of the district court and ordered the charge retried in the light of State v. Clark, 286 Or. 33, 593 P.2d 123 (1979).

Clark was decided 13 days after plaintiff's district court conviction. Under that case a defendant may use non-expert testimony to impeach the results of a breathalyzer test. In the district court defendant was represented by counsel who was aware of the pendency of Clark before the Supreme Court. Defendant could reasonably have been expected to appeal his conviction, assigning as error the refusal to admit the breathalyzer test result. Clark was decided 17 days before the end of the 30-day period in which a direct appeal could have been taken under ORS 138.071. The failure of the defendant to appeal was a waiver of the right to post-conviction relief. Lerch v. Cupp, 9 Or. App. 508, 497 P.2d 379 (1972).

Reversed.