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STATE v. SIMPSON

No. 78-06338; CA 12534.

594 P.2d 425 (1979)

40 Or.App. 83

STATE of Oregon, Respondent, v. Jerry Paul SIMPSON, Appellant.

Court of Appeals of Oregon.

Decided May 7, 1979.

Attorney(s) appearing for the Case

Elizabeth A. Baldwin, Eugene, argued the cause for appellant. With her on the brief was Ross M. Shepard, Eugene.

Robert Reinhard, Eugene, argued the cause for respondent. On the brief were J. Pat Horton, Dist. Atty., and Frank R. Papagni, Jr., Asst. Dist. Atty., Eugene.

Before SCHWAB, C.J., and BUTTLER and JOSEPH, JJ.

JOSEPH, Judge.

Defendant appeals from the judgment on a jury conviction of driving under the influence of intoxicants. ORS 487.540. He argues that the trial court erred in denying his motion — styled a "motion in limine" — to exclude from evidence the result of a breathalyzer test on the ground that the test ampule was not produced for retesting. The state conceded that the ampule had not been retained.

The trial court denied the motion...

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