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STATE v. KIRSCH

067012, A132400.

168 P.3d 318 (2007)

215 Or. App. 67

STATE of Oregon, Plaintiff-Appellant, v. Kyle Burke KIRSCH, Defendant-Respondent.

Court of Appeals of Oregon.

Decided September 19, 2007.

Attorney(s) appearing for the Case

Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Kristin Carveth, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

HASELTON, P.J.

In this prosecution for driving under the influence of intoxicants (DUII), ORS 813.010, the state appeals from a pretrial order suppressing the results of a breath test. ORS 138.060(1)(c). The trial court concluded that ORS 813.100(2) prohibits an officer from giving a breath test after a driver has initially "refused" to take the test, even if the driver, in response to the officer's renewed request, subsequently reconsiders and agrees to take the...

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