FILED: January 23, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SANDRA ROSE DAVE,

Defendant-Appellant.

Umatilla County Circuit Court
F040734; A132102

Daniel J. Hill, Judge.

Argued and submitted December 20, 2007.

Ernest G. Lannet argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Jamesa J. Drake, Deputy Public Defender, Legal Services Division, Office of Public Defense Services.

Paul L. Smith argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General.

Before Edmonds, Presiding Judge, and Sercombe, Judge, and Riggs, Senior Judge.

PER CURIAM

Reversed and remanded.

PER CURIAM

Defendant was convicted of unlawful possession of a Schedule II controlled substance. Former ORS 475.992 (2003), renumbered as ORS 475.840 (2005). On appeal, defendant argues that the trial court erred in denying her motion in limine to exclude a crime laboratory report on the ground that ORS 475.235 unconstitutionally shifted the burden of production to defendant. The state concedes that, under State v. Birchfield, 342 Or 624, 157 P3d 216 (2007), the trial court erred in admitting the report, but argues that the error was harmless. On the record before us, we agree with the state's concession. However, we disagree that the error was harmless, inasmuch as a central issue at trial was whether the state proved that the substance found in defendant's possession was a controlled substance.

Reversed and remanded.


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