Basile v. DMV

• Decision Date: 17 May 2000
• Citation: 1 P.3d 481,167 Or. App. 335
• Parties: In the Matter of the Suspension of the Driving Privileges of Michael Howard BASILE, Respondent, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH (DMV), Appellant.
• Court: Oregon Court of Appeals

1 P.3d 481

167 Or. App. 335

In the Matter of the Suspension of the Driving Privileges of Michael Howard BASILE, Respondent, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH (DMV), Appellant.

(C980262CV; CA A103329)

Court of Appeals of Oregon.

Argued and Submitted October 5, 1999.

Decided May 17, 2000.

Kelly Knivila, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

No appearance by respondent.

Before HASELTON, Presiding Judge, and WOLLHEIM and BREWER, Judges.

WOLLHEIM, J.

In this implied consent case, the Oregon Department of Transportation, Driver and Motor Vehicles Services Branch (DMV), appeals the circuit court's judgment setting aside its order suspending petitioner's driver's license after he refused to take a chemical breath test following his arrest for driving under the influence of intoxicants (DUII). ORS 813.410. Although this is an appeal from a judgment of the circuit court, we review DMV's order. Adams v. MVD, 132 Or.App. 431, 433, 888 P.2d 1078 (1995). We review for substantial evidence and errors of law, ORS 813.450(4), and reverse the trial court's judgment setting aside DMV's suspension order and remand with instructions to enter an order of suspension. Id. at 435, 888 P.2d 1078 (citing Wimmer v. Motor Vehicles Div., 83 Or.App. 268, 269, 730 P.2d 1297 (1986)).

The issue on appeal is whether petitioner received adequate notice of his rights and consequences as provided in ORS 813.130 with regard to the length of his license suspension for refusing to take a breath test. We recite the facts relevant to that issue as found by the administrative law judge (ALJ) that are supported by substantial evidence.

In January 1998, Deputy Bailey arrested petitioner for DUII. After transporting petitioner to the police station, Bailey brought him into the Intoxilyzer room and advised him of his rights and consequences. The implied consent form is a combined form containing the police report required by ORS 813.100(3)(d) and the written notice of intent to suspend a driver's license required by ORS 813.100(3)(b). On the front of the form is a checklist, A-H, which describes the basis for the license suspension, i.e., breath test failure or test refusal, and the exact length of that suspension. The rights and consequences section is on the back side of the form and contains the following paragraph:

"(c) Your driving privileges will not be suspended if you submit to any test requested and do not fail. If you refuse a test or fail a breath or blood test, your driving privileges are subject to suspension for each test refusal or failure. The outcome of a criminal charge for driving while under the influence of intoxicants will not affect the implied consent suspension(s). Suspension for refusing a test is substantially longer than suspension for failing a test. The suspension period will also be increased if, within the last 5 years, you have been convicted of DUII, you have had your driving privileges suspended under the Motorist Implied Consent Law, or you have participated in a DUII diversion or similar program. The applicable suspension periods are designated on the front of this form." (Emphasis added.)

Before asking petitioner to take the breath test, Bailey read this section verbatim to petitioner. Petitioner refused to take the breath test, and Bailey completed the implied consent form and gave a copy to petitioner. On DMV's copy of the report, "D" was marked indicating that petitioner had refused to submit to a breath test, and "G" was marked indicating that petitioner's suspension would be for one year. The form contains only two options for suspension times for refusal to submit to a breath test, "G" indicating one year and "H" indicating "3 years, because you are subject to the increased provisions of ORS 813.430. (See paragraph (c) on back)." Petitioner's copy of the form did not have either "G" or "H" marked; thus, no specific suspension time was indicated on his copy of the form.

Petitioner submitted a timely request for a hearing to DMV, and, at the hearing, the officer surmised that the failure of petitioner's copy to show that "G" was marked could have been caused by a piece of paper being inadvertently placed between the duplicate copies. Petitioner testified that he was never told that he faced a one-year suspension for failure to take the breath test and that, despite the officer's explanation of rights and consequences and receiving a copy of those rights and consequences, petitioner did not understand the severity of the penalty. Petitioner did not offer any other evidence of how he was prejudiced.

The ALJ concluded that petitioner received adequate notice of suspension despite the fact that petitioner's notice did not reflect a specific length of suspension. The ALJ reasoned:

"Although the Petitioner's copy of the implied consent report form does not have a suspension length marked, Petitioner nevertheless was apprised that his conduct of refusing to take the breath test would have an adverse effect on his driver license. Not only was Petitioner read verbatim the rights and consequences on the reverse of the report form, he was served with a copy of those rights. * * *.

"* * * * *

"Petitioner was advised that if he refused, his license would be suspended. Petitioner was advised that the suspension for that refusal would be longer than if he took and failed the test. Petitioner was advised that the suspension lengths were on the front of the form."

The ALJ also found that, even if the notice was deficient, petitioner had failed to show that he had been prejudiced by the deficiency:

"Petitioner requested a hearing and was able to meet and cross examine the evidence and witnesses against him. No arguments were made by Petitioner that he was unable to contest the proposed agency action, nor did Petitioner allege that he was misled or uninformed about the basis for the suspension. The Department finds that Petitioner was not prejudiced by the length of the proposed suspension not being marked on his copy of the Implied Consent Combined Report."

The ALJ therefore ordered petitioner's license suspended for one year.

Petitioner sought review in circuit court. The circuit court set aside that order, reasoning that

"[the notice] says the applicable suspension periods are designated on the front of the form. Well, they aren't. So the question is, because the law says that it can be either one and it goes through and tells you what the deal is and then it says, `And look on the front of this form and you'll see how long you're subject to suspension,' and I guess the answer is zero. And so I think that's what kills the form is where it actually says `see the front of it,' and decide * * * what your suspension period is and in this case, it was specifically set for zero."

DMV appeals that judgment, arguing, alternatively, that the notice either fully complied or substantially complied with the applicable statutory requirements and that petitioner was not prejudiced by any deficiency in the notice. We conclude that the order of suspension is valid.

ORS 813.100 provides that any person who operates a motor vehicle on Oregon roadways "shall be deemed to have given consent, subject to the implied consent law, to a chemical test...