State v. Schlesser

PER CURIAM

Defendant appeals his conviction for driving while under the influence of intoxicants. The state concedes that the trial court erred in refusing to require the state to produce statements of defendant and the arresting officer made during a police internal affairs investigation of the circumstances surrounding defendant’s arrest, and we agree. ORS 135.815; State ex rel Wilson v. Thomas, 74 Or App 137, 700 P2d 1045, rev den 300 Or 64 (1985).

Because the statements are not in the record, we are unable to determine what effect the failure to disclose had on the trial. We therefore vacate the conviction and remand the case to the trial court. If that court determines, after disclosure of the statements, that the failure to disclose was harmless, it may reinstate the conviction. See State v. Miller, 300 Or 203, 220-22, 709 P2d 225 (1985); State v. Van Hooser, 266 Or 19, 511 P2d 359 (1973). Otherwise, it shall order a new trial. See State v. Wood, 67 Or App 218, 225 n 2, 678 P2d 1238, rev den 297 Or 124 (1984); State v. Addicks, 28 Or App 663, 560 P2d 1095 (1977). If the state fails to disclose the statements, the court shall dismiss the case with prejudice or impose an other appropriate sanction. ORS 135.865.

Conviction vacated; remanded for further proceedings not inconsistent with this opinion.