Opinion
95C21374; CA A91144
Argued and submitted October 3, 1996.
Reversed and remanded April 16, 1997.
Appeal from the Circuit Court, Marion County, Joseph V. Ochoa, Judge.
Jonathan H. Fussner, Assistant Attorney General, argued the cause for appellant. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Robert J. Gunn argued the cause and filed the brief for respondent.
Before Deits, Presiding Judge, and De Muniz and Haselton, Judges.
PER CURIAM
Reversed and remanded for proceedings not inconsistent with State v. Spicer, 147 Or. App. 418, 936 P.2d 1005 (1997).
The state appeals from a pretrial order suppressing the results of defendant's field sobriety tests. ORS 138.060(3). We reverse and remand for proceedings not inconsistent with our opinion in State v. Spicer, 147 Or. App. 418, 936 P.2d 1005 (1997).
On remand, we instruct the court to exclude any reference to defendant counting, and to admit evidence that defendant used his arms for balance and placed his foot down several times during the one-leg-stand test, and that he stepped off the line, did not walk heel-to-toe and pivoted rather than turned in the walk-and-turn test.
Reversed and remanded for proceedings not inconsistent with State v. Spicer, 147 Or. App. 418, 936 P.2d 1005 (1997).