State v. Tynon

The majority fails to follow the express holding of a previous case that controls the issues that it discusses. Under that case, Officer Bigman failed to comply with the applicable rule when he administered the breath test to defendant, and the evidence is not admissible; there are no further findings for the trial court to make. For that reason, I dissent from the majority’s decision to remand the case. The state’s alternative argument, that under ORS 136.432 the evidence of the breath test is admissible despite the violation of the rule, is also unavailing. We should affirm the trial…