dissenting.
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 on our decision in Kauffman v. Motor Vehicles Div., 10 Or App 582, 585-86, 500 P2d 473 (1972).
In Kauffman, the petitioner blew into a breath-test machine, but the officer administering the test failed to turn a knob on the machine to the required operating position. Id. at 584. As a result, when the petitioner blew into the machine, the machine did not measure petitioner’s blood-alcohol content. Id. at 585. When the officer asked the petitioner to blow into the machine again, the petitioner refused. On appeal, the petitioner argued that he had complied with his statutory duty to complete a breath test by blowing into the machine the first time. We disagreed. After discussing this state’s policy to remove drunk drivers from the highways, which, we said, outweighs the possible prejudice that a second test could cause an individual, we held that refusing to submit to a second test constituted a refusal that could be used against a person. Id. at 586.
Defendant distinguishes Kauffman on the ground that he completed the first breath test in this case. He argues that, unlike the situation in Kauffman where the blood-alcohol content was never measured, his blood-alcohol content was measured. Only the evidence card memorializing that content was unreadable. He argues that the officer could testify about the result of the test, based on the digital readout of that result on the Intoxilyzer machine, and that that testimony would be admissible. See, e.g., State v. Holcomb, 99 Or App 156,158-59, 781 P2d 396 (1989).1 He also argues that the officer could have used the reprint option on the Intoxilyzer machine to print another card.2 Defendant contends, therefore, that he completed the first test, which distinguishes this case from Kauffman. I agree.
*409In Kauffman, no measurement of the defendant’s blood-alcohol content was ever taken. ORS 813.100(1) provides, in part, that a person who operates a motor vehicle on the highways of this state shall submit “to a chemical test of the person’s breath * * * for the purpose of determining the alcoholic content of the person’s blood.” Defendant complied with that requirement when he took the first test in this case. In Kauffman, it was not possible to determine the alcohol content of the petitioner’s blood. That is not so here. Defendant’s blood-alcohol content was determined by the first breath test that he took. Hence, as the issue was framed at trial, the trial court did not err in suppressing the result of the second test.
The state did not argue below or on appeal that the result of the second test could be admitted as the result of a consensual search, which is the ground on which the majority decides this case. For the reasons stated in Miller v. Water Wonderland Improvement District, 141 Or App 403, 407 n 3, 918 P2d 849, rev allowed 324 Or 18 (1996), I believe that the majority errs in deciding the case on the ground that it does.3 Based on the issue framed by the parties below, I would affirm the trial court.
There is no evidence in the record about whether the Intoxilyzer 5000 has a digital display, but the administrative rules that relate to the proper administration of the test indicate that it does. See OAR 257-030-070; see also Holcomb, 99 Or App at 158.
The officer testified that he forgot about this option because the Intoxilyzer 5000 was fairly new when he administered the test to defendant.
Except when the doctrine of plain error allows an appellate court to review unpreserved error, it is a fundamental principle of appellate review that a party must present to a lower court or tribunal the legal proposition that entitles it to the ruling it seeks from that tribunal, in order for the party to be in a position to ask an appellate court to reverse that ruling. See, e.g., State v. Hitz, 307 Or 183, 188-89, 766 P2d 373 (1988). No one suggests that plain error applies to the issue in dispute in this case, so review of that issue depends on whether the state fulfilled its obligation to tell the trial court the ground on which it was entitled to prevail on its motion. The state failed to do that.