State v. McCann

The majority reverses the trial court’s order suppressing the result of the second breath test that was administered to defendant, holding that the result is admissible if the court finds that defendant consented to take the second test. The majority thus reverses the trial court based on a theory that neither party raised below or on appeal.

The only argument that the state made below in opposition to suppression of the result of the second test was that the first test did not produce a valid result, so the second *408test was properly conducted under ORS 813.100(1). It based its argument solely…