Summary
upholding search of driver's breath based on express voluntary consent at time of arrest
Summary of this case from State v. BanksOpinion
(CC 091131 CA A145081 SC S60134).
2014-02-27
STATE of Oregon, Petitioner on Review, v. Jesse James MOORE, Respondent on Review.
On respondent on review's petition for reconsideration filed January 2, 2014; considered and under advisement on February 19, 2014. * Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, filed the petition for reconsideration. No appearance contra.
On respondent on review's petition for reconsideration filed January 2, 2014; considered and under advisement on February 19, 2014.
Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, filed the petition for reconsideration. No appearance contra.
PER CURIAM.
Defendant has petitioned for reconsideration of our decision in State v. Moore, 354 Or. 493, 318 P.3d 1133 (2013), which reversed the decision of the Court of Appeals and the order of the circuit court and remanded the case to the circuit court for further proceedings. Defendant raises a number of arguments for reconsideration of our opinion on the merits, which we reject without discussion. However, defendant correctly notes that the Court of Appeals declined to address two alternative bases for affirmance that defendant had advanced in that court. State v. Moore, 247 Or.App. 39, 47 n. 4, 269 P.3d 72 (2011). Defendant now asks this court to remand the case to the Court of Appeals for consideration of those issues in the first instance. We agree that we should do so. We accordingly allow the petition for reconsideration and modify our disposition of this case as follows: The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals to consider defendant's alternative grounds for affirmance.
The petition for reconsideration is allowed. The former opinion is adhered to as modified.
Appeal from an order of the Tillamook County Circuit Court, Mari Garric Trevino, Judge. 247 Or.App. 39, 269 P.3d 72 (2011).