Heer v. Department of Motor Vehicles

• Citation: 252 Or. 455,450 P.2d 533
• Parties: Lawrence Delmar HEER, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Respondent. Otis Paul GRAYSON, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Respondent.
• Decision Date: 13 February 1969
• Court: Supreme Court of Oregon

Page 533

450 P.2d 533

252 Or. 455

Lawrence Delmar HEER, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Respondent.

Otis Paul GRAYSON, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 6, 1969.

Decided Feb. 13, 1969.

Dan W. Poling, Newport, argued the cause and filed the briefs for appellants.

John S. Marandas, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and LANGTRY, JJ.,

LANGTRY, Justice (pro tem.)

These consolidated proceedings seek to test the constitutionality of the Implied Consent Law, Oregon Laws 1965, ch. 574 (ORS 482.540 through 482.580 and 483.634 through 483.646).

Lawrence Delmar Heer and Otis Paul Grayson each were arrested in the city of Newport for driving while under the influence of intoxicating liquor in violation of ORS 483.992. They were charged in the municipal court with violation of the state law. In previous consolidated cases they challenged the authority of that municipal court to hear the charge in its capacity as an ex officio justice of the peace court. We rejected this challenge in Grayson v. State (Heer v. State), 249 Or. 92, 436 P.2d 261 (1968).

At the police station, after their arrests, each defendant was requested by one of the arresting police officers to take a breath test for determination of alcoholic content of blood as provided in ORS 483.634, and each refused.

Pursuant to the statute the refusals were communicated to the Department of Motor Vehicles, hearings were requested by petitioners and held. The operator's license of each was suspended. Each then petitioned the circuit court for a de novo hearing as provided by ORS 482.560.

Their amended petitions in circuit court alleged the action taken by the department was 'erroneous, unconstitutional and contrary to law' in that: (1) the city could not prosecute for violation of the state law (it was this question that was disposed of in the previous appeal); (2) the hearing procedure of the Implied Consent Law violates the Fifth Amendment of the U.S. Constitution in that it requires the defendants, who still faced prosecution for the criminal charge, to go forward with evidence which in turn might tend to criminate them; (3) that the proceeding under the Implied Consent Law violates 'Due Process Clauses of the Fifth and Fourteenth Amendments in that * * * the Department of Motor Vehicles is not a Court or Tribunal of Competent Jurisdiction;' (4) 'it violates equal protection;' (5) the officer is vested with 'legislative discretion' in that he may arbitrarily decide of whom he will request the test.

The Department of Motor Vehicles answered denying the above allegations.

Petitioners' attorney orally stated in one trial, '* * * I would demur to the taking of any testimony * * *' and in the other, which was held the following day '* * * petitioner * * * demurs to these proceedings * * *.' There was much more than these isolated statements of petitioners' counsel in the colloquy between the court and both counsel about how to proceed, but apparently petitioners' counsel was trying to present to the court the issues which were already drawn and presented by the pleadings. Petitioners simply were questioning whether there was or could be valid action taken in a proceeding under the Implied Consent Law, because they claim it contravenes the Oregon and U.S. Constitutions. A simple refusal to proceed with the evidence under the state of the pleadings would have sufficed.

The trial court heard full evidence, over objection in the case where the defendant was present but not in the other because that defendant was not present, and upheld in each the action of the hearing officer. The effect of the trial court's order in each case was to reject petitioners' claims.

This appears to be the first appellate test of the Implied Consent Law in Oregon. In plan and content the act is essentially the same as similar acts in other states. Attacks upon such laws on constitutional grounds like those urged here appear to have been rejected in some ten of those states. Gottschalk v. Sueppel, 258 Iowa 1173, 140 N.W.2d 866 (1966); Lira v. Billings, 196 Kan. 726, 414 P.2d 13 (1966); Marbut v. Motor Vehicle Department, 194 Kan. 620, 400 P.2d 982 (1965); Lee v. State, 187 Kan. 566, 358 P.2d 765 (1961); Blydenburg v. David, 413 S.W.2d 284 (Mo.1967); Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75, 88 A.L.R.2d 1055 (1961); State v. Kenderski, 99 N.J.Super. 224, 239 A.2d 249 (1968); Finocchairo v. Kelly, 11 N.Y.2d 58, 226 N.Y.S.2d 403, 181 N.E.2d 427, cert. den., 370 U.S. 912, 82 S.Ct. 1259, 8 L.Ed.2d 405 (1962); Anderson v. Macduff, 208 Misc. 271, 143 N.Y.S.2d 257 (Sup.Ct.1955); Schutt v. Macduff, 205 Misc. 43, 127 N.Y.S.2d 116 (Sup.Ct.1954); Timm v. State, 110 N.W.2d 359 (N.D.1961); Chmelka v. Smith, 81 S.D. 40, 130 N.W.2d 423 (1964); State v. Muzzy, 124 Vt. 222, 202 A.2d 267 (1964); Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 (1963). These and other cases are collected in an extensive Annotation in 88 A.L.R.2d 1064, and A.L.R.2d Later Case Service.

In no state does such a law essentially the same as that adopted in Oregon appear to have been stricken down on constitutional grounds.

Without detailing provisions of the act, it provides that a driver on a highway of the state shall be deemed to have given consent to a chemical test of his breath to determine the alcoholic content of his blood. The prerequisite steps that result in loss of operator's license are these: (1) if he is arrested for driving in violation of ORS 483.992 (driving while under the influence of intoxicating liquor); (2) the police officer has reasonable grounds to believe the person arrested was driving while intoxicated; (3) a test shall be administered upon the request of the police officer; (4) if such arrested person refuses the request; (5) has been informed of the consequence of refusal, which is loss of operator's license for 90 days; and (6) his rights, which include a reasonable opportunity of having a test of blood, breath, urine or saliva made by qualified medical personnel of his own choosing, no test may be given, but he will lose his operator's license for 90 days through an administrative process. ORS 483.634. The police officer is required to prepare a sworn report setting forth the occurrence of all six of the procedural requirements above related, and file it with the Department of Motor Vehicles, which then has the duty of suspending the operator's license. The driver may request a hearing, which, if requested, is before a department hearing officer. The hearing is limited to ascertainment that the same six procedural requirements have been met. If these are proved and the hearing officer orders the suspension the driver may appeal by filing a petition in the circuit court. '* * * The trial in the circuit court shall be de novo and the appellant shall have the right to a jury as provided in criminal actions.' ORS 482.560.

Although the pleadings and petitioners' brief state the issues to be decided in this appeal somewhat indefinitely, the allegations of paragraph IV of the amended petitions, put in issue by the answers, challenge procedure which conformed with the statute in these particulars: (1) that it violated the Fifth Amendment of the United States Constitution because it required petitioner to incriminate himself; (2) that the procedure violated requirements of due process of law; (3) that it violated equal protection requirements of state and federal constitutions; (4) that it violated the separation of powers of the state constitution in that it confers legislative discretion on the police officer who decides those who will be requested to take the test.

These challenges will be considered in the above order.

(1) The objection on self-incrimination grounds frequently has been made in cases challenging the Implied Consent Law in other states. In each instance it has been rejected, usually under the theory that by driving upon the highways of the state the driver accepts the law as it is. He thus consents to the taking of a breathalyzer test or some other test designed to determine the amount of alcohol in his blood, and by this consent he waives his constitutional privilege against self-incrimination. This was the reasoning of Lee v. State; Marbut v. Motor Vehicle Department; Walton v. City of Roanoke; Prucha v. Department of Motor Vehicles; and Blydenburg v. David, all supra.

In Schutt v. Macduff and Lee v. State, supra, the court also said the accused is given the choice of waiving his privilege against self-incrimination or of losing the privilege of driving. The opinions frequently point out that the criminal charge and the proceedings for loss of license by reason of refusal to take the test are separate and distinct--the latter administrative and civil in character. Prucha v. Department of Motor Vehicles; Anderson v. Macduff; State v. Muzzy; Gottschalk v. Sueppel; Marbut v. Motor Vehicle Department, supra; and Strelecki v. Coan, 97 N.J.Super. 279, 235 A.2d 37 (1967); Beare v. Smith, 140 N.W.2d 603 (S.D. 1966).

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