State v. McCann , 144 Or. App. 403 ( 1996 )

EDMONDS, J.

The state appeals a pretrial order that suppressed the results of a breath test taken by defendant. We review for errors of law, State v. Lambert, 134 Or App 148,894 P2d 1189 (1995), and reverse.

Defendant was arrested for driving while under the influence of intoxicants. ORS 813.010. He was taken to the police station and given a Breathalyzer test for alcohol. The officer who administered the test removed the printout card from the machine prematurely, causing the test results printed on the card to blur. The officer then, without repeating the implied consent warnings that preceded the prior test, immediately asked defendant if he would take the test again. Defendant agreed, and the test was performed a second time.

At trial, defendant objected to the admissibility of the second test result based on a purported discovery violation and because ORS 813.100(1) requires submission to only one test. His counsel told the court, “My client is not at that point required to submit to a breath test again. He had done as asked, as requested and the test had been completed.” The trial court ruled that there had been no discovery violation and that defendant had completed the first test. It then held:

“[T]he second test although it was theoretically voluntary by [defendant], I hold to be involuntary given the circumstances that he was in. I don’t think you can say that he voluntarily gave that second test. * * * So, [defendant] submitted to a test of his breath and it is the state’s problem that the test results are not usable. Therefore, there is no test. Therefore, any evidence concerning the intoxilyzer will be excluded.” (Emphasis supplied.)

Thereafter, defendant moved for and the court granted a mistrial, because the second test result had been mentioned during the state’s opening statement.

The case was rescheduled for trial. Before trial, the state moved in limine for a ruling that the results of the second test were admissible. The trial court denied the motion by written order:

“I am asked to revisit a ruling made April 5,1995, suppressing a second breathalyzer test of defendant. The state argues that Kauffman v. Motor Vehicles Div., 10 Or App 582[, 500 P2d 473] (1972) requires a different result. It does not. In Kauffman, the Court anticipated the distinction. ‘There is no contention that the machine was not in proper operating order or that the unmeasured first blow could have affected a correct measurement of the one he refused.’ 10 Or App at page 585. Defendant McCann gave a sample and it was measured and tested. That is all he is required to do.” (Emphasis in original.)

The state appeals that pretrial ruling.

The legal issue presented by the trial court’s ruling is narrow: whether ORS 813.100(1) requires exclusion of the second test result from evidence. ORS 813.100(1) provides:

“Any person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person’s breath, or of the person’s blood if the person is receiving medical care in a health care facility immediately after a motor vehicle accident, for the purpose of determining the alcoholic content of the person’s blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants Hi Hi * »

The trial court reasoned that defendant’s consent to take the second test was involuntary, not because his consent was coerced or the result of a misrepresentation, but because the statute authorizes only one test based on implied consent. Therefore, according to the trial court, the effect of the statute was to render the second test result illegal per se.

The trial court’s analysis misses the mark. The statute does not control the admissibility of the second test result into evidence. Rather, it provides that a licensed driver cannot lawfully refuse to take a Breathalyzer test because consent to take the test is implied when the driver operates a motor vehicle on a public highway. Here, however, the statute is not implicated by the second test result. It governed only the admissibility of evidence about the first test. That statutory consent may not be implied for the second test says nothing about whether defendant actually consented. The trial court erred in ruling that ORS 813.100(1) rendered the second test involuntary as a matter of law.

At trial and before us, the state relied on Kauffman as authority for its argument in support of its motion in limine. However, as the trial court correctly noted, “Kauffman does not require a different result” from the one it reached. In Kauffman, the question was whether the petitioner’s driver’s license should be suspended after his refusal to take a second breath test. We held that because the first test had not been completed, he was not justified in refusing to take the second test. Nonetheless, Kauffman illustrates the point of our analysis about the import of ORS 813.100(1): It is only implicated when there is a refusal. Here, defendant did not refuse to take the second test. Although the state’s reliance on Kauffman is misplaced,¹ that does not mean that the statute operates to make the second test involuntary, as the court ruled. Accordingly, we reverse the trial court’s order which excluded the evidence concerning the second test on that basis.

Reversed and remanded.

1 In State v. Hitz, 307 Or 183, 766 P2d 373 (1988), the court noted that, regarding preservation of constitutional error for purposes of appeal, there is a distinction among raising an issue at trial, identifying a source for a claimed position and making a particular argument. “The first ordinarily is essential, the second less so, the third least.” Id. at 188. Similarly, in Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 723 P2d 298 (1986), the court articulated the same principle, explaining, “A court, however, is not confined to choosing only among the arguments and authorities cited by counsel for or against a properly identified claim.” Id. at 370 n 12. We regard the rule of preservation as it applies to incorrect statutory interpretation to be no different.