State v. Rosenbohm

Defendant appeals his conviction for driving under the influence of intoxicants, ORS 813.010. He contends that he did not have a fair trial because the prosecutor stated in rebuttal closing argument that, to the extent an Intoxilyzer errs, it errs in favor of defendant and that defendants blood alcohol content "could have been as high as.40 percent," which was not supported by evidence at trial. Because the evidence at trial demonstrated that defendant drove while impaired by intoxicants, and because the court instructed the jury that the lawyers statements were arguments, not evidence, we conclude that the prosecutors statements were unlikely to prejudice the jury unfairly. Accordingly, we affirm.