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In re Suspension of Driving Privileges of Stephen Donald Jones3/9/1988
COURT OF APPEALS OF OREGON
CA No. A43461
1988.OR.42732 ; 750 P.2d 1203; 90 Or. App. 143
Filed: March 9, 1988.
IN THE MATTER OF THE SUSPENSION OF THE DRIVING PRIVILEGES OF STEPHEN DONALD JONES, RESPONDENT,
v.
MOTOR VEHICLES DIVISION, APPELLANT
Appeal from Circuit Court, Lane County. George J. Woodrich, Judge. No. 16-86-07627.
Timothy A. Sylwester, Salem, argued the cause for appellant. With him on the brief was Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Robert A. Miller, Eugene, argued the cause and filed the brief for respondent.
Buttler, Presiding Judge, and Warren and Rossman, Judges.
Rossman
The state appeals from a circuit court decision reversing Motor Vehicle Division's (MVD) suspension of petitioner's driver's license for "refusing" to submit to a breath test. ORS 813.100(3). The circuit court ruled that there was not substantial evidence that petitioner refused the test, because OAR 257-30-020(1)(c)(F) is ambiguous regarding what constitutes completing the breath test -- i.e., whether a printout is required. The only issue is whether petitioner's failure to continue to blow into the Intoxilyzer until a printed result was obtained constitutes a "refusal" under ORS 813.100(3).
Petitioner was arrested for driving under the influence of intoxicants. He stipulates that the officer had reasonable grounds to believe that he had been driving under the influence and that the officer informed him of his rights and consequences pursuant to ORS 813.130 before asking him to submit to a breath test. Petitioner was asked several times to blow into the Intoxilyzer until it would "click" and a final printout could be obtained. Although petitioner's breath registered .18 on the digital display, he repeatedly failed to blow long enough and with sufficient force to produce a printout, despite the officer's warnings that he would record a refusal if petitioner did not oblige. When the officer offered petitioner one final opportunity before recording a refusal, he again blew -- but only for a few seconds -- and then stopped. There is no evidence that petitioner was physically incapable of completing the test as requested or that the Intoxilyzer was not working.
The officer testified that petitioner was "acting like he was blowing into" the instrument, but "it didn't appear that his cheeks were filling up with air as if he was blowing into the mouthpiece. There was no air heard passing into the tube." Thereupon, the officer told petitioner that he was noting a refusal. Petitioner protested that it was not a refusal and later testified that he felt he had already taken the test and failed, as evidenced by the digital display of .18.
Pertinent statutes and rules do not define the term "refusal" under the Implied Consent Law; however, OAR 257-30-020(1)(c) prescribes the test procedure to be followed
by operators using an Intoxilyzer Model 4011 or 4011A. It provides, in pertinent part:
"(F) Disconnect the Breath Tube from the Pump Tube. Connect a clean mouthpiece to the Breath Tube. Have the subject inhale and then blow into the Breath Tube, giving as long an expiration as possible with the Breath Pressure lamp on for the entire time of the expiration. The numbers on the Digital Display will increase and will level off when the sample cell is filled w
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