FILED: September 9, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JAMES RAY WALKER, JR.,

Defendant-Appellant.

Curry County Circuit Court
06CR0062
A133585

Richard K. Mickelson, Judge.

Argued and submitted on August 13, 2009.

Peter Carini argued the cause and filed the brief for appellant.

Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent.  With her on the brief were John R. Kroger, Attorney General, and Rolf C. Moan, Acting Solicitor General.

Before Landau, Presiding Judge, and Schuman, Judge, and Ortega, Judge.

PER CURIAM

Convictions on Counts 3 and 4 reversed and remanded; otherwise affirmed.

PER CURIAM

Defendant appeals a judgment of conviction for two counts of driving under the influence of intoxicants (DUII) (Counts 2 and 3), possession of a controlled substance (Count 1), and reckless driving (Count 4).  He advances two assignments of error.  He first contends that the trial court's "unreasonable, myopic and arbitrary insistence upon expeditiousness" and its "single minded obsession with pushing this case to trial" amounted to an abuse of discretion when the court denied his last-minute motion from his third, newly retained counsel for a continuance of the trial.  We affirm the trial court's decision on that matter, pausing only to comment that ad hominem attacks on trial judges are not helpful.  See Tahvili v. Washington Mutual Bank, 224 Or App 96, 108, 197 P3d 541 (2008) ("We have repeatedly, in both published opinions and public professional fora, condemned ad hominem attacks on trial judges as offensive and improper."). 

Defendant next contends that the trial court erred in admitting a laboratory report testing a sample of defendant's urine, over defendant's objection that the criminalist who performed the tests did not testify.  The evidence related to one of the DUII convictions and to the reckless driving conviction.  The state concedes the error of that ruling under State v. Birchfield, 342 Or 624, 157 P3d 216 (2007).  We agree that the trial court erred in admitting the lab report.

Convictions on Counts 3 and 4 reversed and remanded; otherwise affirmed. 


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