The Oregon Supreme Court ruled Thursday that a driver whose blood alcohol content registered .09 percent nearly two hours after he was stopped shouldn’t have been convicted of drunken driving.

The legal limit for driving is .08 percent, but the Supreme Court said it’s unclear what 62-year-old John Charles Hedgpeth’s blood alcohol content was at the time he was pulled over along the Oregon coast in Coos County.

That’s because an officer didn’t give Hedgpeth a breath test until back at a police station one hour and 55 minutes later, the court noted.

The high court affirmed a 2018 decision by the Oregon Court of Appeals, which said it’s possible Hedgpeth was legally sober when he was stopped, but that over the next nearly two hours, more liquor entered his bloodstream and raised his alcohol content to an illegal level. In other words, Hedgpeth could have consumed a lot of alcohol moments before an officer stopped him on March 21, 2014, but the alcohol hadn’t taken effect yet.

John Charles Hedgpeth, 62, was arrested under suspicion of DUII on March 21, 2014. (Coos County Jail)

The Supreme Court also acknowledged that it’s possible Hedgpeth’s blood alcohol content at the time of the stop was higher than .09 percent and his body burned off some of the alcohol as nearly two hours passed.

The problem, the Supreme Court noted, is that the prosecution failed to provide evidence that supported the theory that Hedgpeth’s blood alcohol level had decreased from the time since the officer pulled him over.

The Supreme Court also said that blood alcohol at the point a driver is stopped is just one way to prove the crime of driving under the influence of intoxicants. Oregon law also allows officers to prove it through observations of sloppy driving or from field sobriety tests. But the prosecution in Hedgpeth’s case offered no evidence of any of that, the court said.

An officer pulled over Hedgpeth not for bad driving but for failing to wear a helmet while riding his motorcycle, according to the court summary of the case.

Other than the breath test results, it’s unclear whether police had other evidence that Hedgpeth was intoxicated. It’s also unclear why it took so long to get Hedgpeth to a breath test machine, but a lawyer familiar with the case said getting to such a device can take considerable time in rural parts of the state.

The high court ruled that Coos County Circuit Judge Richard Barron should have thrown out the case.

“The sole question before us is whether that extremely limited record was sufficient to survive a motion for judgment of acquittal,” read the majority opinion, written by Justice Meagan Flynn. “We conclude that it was not.”

Justice Thomas Balmer and Senior Judge Pro Tem Richard Baldwin dissented. Balmer wrote that it was reasonable to infer that Hedgpeth could have been intoxicated at the time he was stopped.

Balmer also said the majority’s opinion might have “seriously undermined” the ability of prosecutors in Oregon to use drivers’ blood alcohol contents to secure DUII convictions.

Balmer noted that Colorado and Washington laws define DUII as having a blood alcohol content of .08 percent or more up to two hours after driving.

The Supreme Court’s majority, however, responded that the Oregon Legislature has the ability to pass laws like those in Colorado and Washington if it wishes to do so.

Read the Supreme Court’s opinions here.

-- -- Aimee Green

agreen@oregonian.com

o_aimee

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