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In re Suspension of Driving Privileges of Stephen Donald Jones3/9/1988
ith an adequate amount of deep lung breath. After a proper sample is given, the sound of the printer will be heard, automatically printing the letter 'B' for breath, plus the first two digits of the display on the Evidence Card. A printout can only occur after the subject stops blowing and the Breath Pressure lamp is extinguished. If the sound of the printer is not heard, indicating that a printout did not occur after the subject stopped blowing into the Breath Tube, and the breath Pressure lamp was extinguished; have him blow again, as many times as necessary, until the sound of the printer is heard. Repeated expirations of the subject's breath into the instrument will not affect the accuracy of the test result.
"(G) Reconnect the Breath Tube to the Pump Tube. Turn the Mode Selector to the 'Air Blank' mode. After the Air Pump automatically shuts off, the sound of the printer should be heard printing the letter 'A' plus the first two digits of the display on the Evidence Card. If the sound of the printer is not heard, indicating that a printout did not occur; repeat Step (C) and again turn the Mode Selector to the 'Air Blank' mode, making sure that the Error light does not glow, and that the sound of the printer is heard after the pump shuts off.
"(H) Remove the Evidence Card from the printer slot and retain as evidence. Record the test result, indicated opposite the letter 'B' on the Evidence Card, on the Operator's Checklist."
When a proper sample is given, it is evidenced by the sound of the printer. If the sound of the printer is not heard, the officer is to ask the arrestee to "blow again, as many times as necessary," until the printer is activated and a printout is obtained. Petitioner was provided an adequate opportunity to activate the printer, yet he repeatedly failed to blow long enough and with sufficient force as requested.
Petitioner contends that the digital display alone reflected completion of the test. OAR 257-30-020(1)(c), however, does not provide that the digital display has any independent significance; the rule contemplates that a printed result
is intended. Therefore, we hold that there is substantial evidence to support the hearings officer's finding that petitioner's conduct constituted a "refusal" within the meaning of ORS 813.100(3).
Reversed and remanded with instructions to suspend petitioner's driving privileges for one year, not including any period during which his privileges were reinstated pursuant to the circuit court's judgment.
Disposition
Reversed and remanded with instructions to suspend petitioner's driving privileges for one year, not including any period during which his privileges were reinstated pursuant to circuit court's judgment.
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