Opinion
No. 73-1437
Argued October 30, 1973
Affirmed November 19, 1973
Appeal from Circuit Court, Lane County.
ROLAND K. RODMAN, Judge.
Ernest Lundeen, Eugene, argued the cause and filed the brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Before SCHWAB, Chief Judge, and LANGTRY and TANZER, Judges.
AFFIRMED.
Defendant appeals from conviction in circuit court of driving while she had more than .15 percent blood alcohol content. ORS 483.999. In district court she had been tried by jury on the above charge, and driving under the influence of intoxicating liquor (ORS 483.992 (2)), and found guilty of the former and not guilty of the latter. Both charges arose out of the same transaction. She appealed the .15 percent blood alcohol guilty finding to circuit court.
The defendant's brief asserts the question for decision on appeal
"* * * is whether the Court may find a person guilty of the .15% blood alcohol charge, when that person has been found not guilty of driving under the influence of intoxicating alcohol at the same time and place. This question involves the Court's determination of the effect of ORS 483.634 to 483.646, where there is no violation of ORS 483.992 (2). It involves a further determination of whether or not the charge of driving while under the influence of intoxicating liquor is the identical charge as driving with .15% alcohol in the blood."
The argument made by defendant is in substance the same as was presented in State v. Abbott, 15 Or. App. 205, 514 P.2d 355 (1973). That opinion is controlling on the questions presented.
Affirmed.