State v. Elkins

PER CURIAM

Defendant appeals his convictions of two separate charges of driving while under the influence of intoxicants. The court placed him on probation; one condition was that he “submit to breath and blood tests.” Defendant contends that that condition does not comply with ORS 137.540(2)(k), because it does not require that the tests be administered only on the request of a probation officer having reasonable grounds to believe that the tests would disclose evidence of a probation violation.

The state concedes that the condition, as written, is inadequate, but contends that the oral pronouncements of the trial court complied with the statute and that we should modify the written judgment to comport with the expressed intention of the court. We conclude, however, that the trial court should be given the opportunity to impose a lawful sentence and condition of probation and that an appropriate record of the new sentence should be made.

Convictions affirmed; condition of probation that defendant submit to breath and blood tests vacated; remanded for resentencing.