Lepire v. Motor Vehicles Division

• Decision Date: 14 July 1980
• Docket Number: No. 78-10-396,78-10-396
• Citation: 613 P.2d 1084,47 Or.App. 67
• Parties: In the Matter of the Refusal to Submit to a Breath Test by: Gilbert John LEPIRE, Respondent, v. MOTOR VEHICLES DIVISION, State of Oregon, Appellant. ; CA 15929.
• Court: Oregon Court of Appeals

Page 1084

613 P.2d 1084

47 Or.App. 67

In the Matter of the Refusal to Submit to a Breath Test by:

Gilbert John LEPIRE, Respondent, v. MOTOR VEHICLES DIVISION, State of Oregon, Appellant.

No. 78-10-396; CA 15929.

Court of Appeals of Oregon.

Argued and Submitted June 9, 1980.

Decided July 14, 1980.

W. Benny Won, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, former Atty. Gen. and Walter L. Barrie, Sol. Gen., Salem.

James D. Fournier, Mount Angel, waived appearance for respondent.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

CAMPBELL, Judge.

Petitioner's driver's license was suspended by the Motor Vehicles Division (Division) after petitioner refused to submit to a chemical breath test following his arrest for driving while under the influence of intoxicating liquor. On appeal of the suspension to circuit court, the court granted petitioner's motion for a directed verdict. Pursuant to ORS 19.010 and 19.020, the Division appeals from the granting of a directed verdict, assigning error to that ruling. The Division also assigns error to the trial court's refusal to admit into evidence, under ORS 41.690, the custody report made by the arresting officer. We reverse and remand.

We first address the question whether the trial court erred in granting petitioner's motion for directed verdict. At trial, petitioner admitted that the arresting officer warned him that a consequence of his refusal to take a breathalyzer test would be the suspension of his license for 120 days. ORS 487.805(2)(a); 482.540(1). He also testified, however, that the officer did not inform him of his right to an independent chemical test, his right to an administrative hearing, or his right to a trial in the circuit court. ORS 487.805(2)(a) and (b); 482.540 et seq. This testimony was uncontradicted. The trial court ruled that there was no issue as to petitioner's credibility and that the jury could not reasonably find from the evidence that the arresting officer properly advised petitioner of his rights under the above-cited statutes. As a consequence, administrative suspension of petitioner's license was reversed. State v. Osburn, 13 Or.App. 92, 96, 508 P.2d 837 (1973).

The leading case in Oregon on the question of whether a jury may give conclusive effect to uncontradicted testimony of the proponent of a fact in issue is Rickard v. Ellis, 230 Or. 46, 368 P.2d 396 (1962). In Rickard v. Ellis, the court, quoting from Ferdinand v. Agricultural Insurance Co., 22 N.J. 482, 494, 126 A.2d 323 (1956), stated:

" * * * Where men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted, uncontroverted or even undisputed, evidence of such a character is for the jury. . . . (citation omitted). But when the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the light of general knowledge and common experience, not extraordinary, not contradicted in any way by witnesses or circumstances, and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an (ordinarily) intelligent mind, then a question has been presented for the court to decide and not the jury. . . . (citation omitted)." 230 Or. at 51, 368 P.2d at 398.

The opinion in Ferdinand further stated:

"(W)here the uncontradicted testimony of a witness, interested or otherwise, is unaffected by any conflicting inferences to be drawn from it and is not improbable, extraordinary or surprising in its nature, or there is no other ground for hesitating to accept it as the truth, there is no reason for denying the verdict dictated by such evidence . . . ." (citations omitted). 22 N.J. at 498, 126 A.2d at 332.

See Rogers v. Hill, 281 Or. 491, 576 P.2d 328 (1978).

Ample grounds exist here for hesitating to accept petitioner's testimony as the complete truth. Petitioner's own testimony suggests that his memory of the events in question may be faulty or incomplete. Although petitioner testified that he was never asked to sign a form indicating that he had been informed of his rights, he admitted that he "couldn't swear by it" and that it was possible he was asked to sign such a form. Petitioner also stated that he probably told the officer he had drunk a six-pack of beer. He had been up all of the preceding day and night, so a jury might reasonably conclude that fatigue at the time of the incident rendered petitioner's recall of the events less believable.

Further, a reasonable person could conclude from petitioner's testimony that the events took place in an atmosphere of emotional tension such that a participant might recall events in a manner consistent with his own interest. See Rogers v. Hill, supra, 281 Or. at 496, 576 P.2d 328.

We conclude that a jury would have been entitled to disbelieve petitioner's version of the events. Accordingly, it was error for the trial court to take the issue from the jury.

Since the evidentiary issue is likely to arise on retrial, we now turn to that question. The Division's key witness was to have been Officer Wallin of the Canby Police Department, the arresting officer. Between the time of arrest and trial, however, Officer Wallin died. In lieu of the officer's testimony, the Division offered into evidence Officer Wallin's custody report, which detailed the circumstances of petitioner's arrest and refusal to submit to a chemical breath test. The report is largely made up of Officer Wallin's first-hand observations, as well as some statements by petitioner that would be admissible under various exceptions to the hearsay rule. The Division offered the report under ORS 41.680 to 41.710, Oregon's version of the Uniform Business Records as Evidence Act, to prove (a) that at the time petitioner was requested to submit to a breath test, the officer had reasonable grounds to believe that petitioner had been driving under the influence of intoxicants, ORS 487.805(3)(b), and (b) that petitioner was fully advised of his rights under the Implied Consent Law, ORS 487.805(3)(d). The trial court refused to admit the report into evidence for these purposes.

ORS 41.690 provides:

"A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."

The term "business" as used in this statute "shall include every kind of business, profession, occupation, calling or operating of institutions, whether carried on for profit or not." ORS 41.680.

Police reports are admissible as "business records" when they satisfy the requirements of ORS 41.690. ¹ See United States v. Smith, 521 F.2d 957 (D.C. Cir. 1975); Bowman v. Kaufman, 387 F.2d 582 (2d Cir. 1967); United States v. Burruss, 418 F.2d 677 (4th Cir. 1969); United States v. Halperin, 441 F.2d 612 (5th Cir. 1971); United States v. Graham, 391 F.2d 439 (6th Cir.), cert. denied, 393 U.S. 941, 89 S.Ct. 307, 21 L.Ed.2d 278 (1968); United States v. Parker, 491 F.2d 517 (8th Cir. 1973), cert. denied, 416 U.S. 989, 94 S.Ct. 2396, 40 L.Ed.2d 767 (1974); United States v. Wolosyn, 411 F.2d 550 (9th Cir. 1969); Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793 (1966); People v. Aguilar, 16 Cal.App.3d 1001, 94 Cal.Rptr. 492 (1971); Johnson v. State, 253 A.2d 206 (Del.1969); State v. Bradley, 17 Wash.App. 916, 567 P.2d 650 (1977). ² Cf. State v. Roisland, 1 Or.App. 68, 459 P.2d 555 (1969) (county jail is a "business" within meaning of ORS 41.690).

Officer Brad Baker of the Canby Police Department, the custodian of documents and reports, testified as to the identity of the report and mode of its preparation. He stated that any time a person is taken to jail, the arresting officer is required by the police department to complete a custody report before the end of his shift and hand it in to be corrected by either the chief or lieutenant. Thus, the report is prepared as a matter of routine. Officer Baker also stated that the reports are prepared not only so the department has a record of all actions taken by the department and its officers, but also so that an arresting officer may have something from which to refresh his memory for trial purposes. From notations on Officer Wallin's report Officer Baker determined that it was prepared and filed soon enough after petitioner's arrest so that the report was reviewed by the lieutenant on the next shift.

Officer Wallin's report thus satisfies the statutory requirements that it be a "record of an act, condition or event," that the custodian testify as to "its identity and the mode of its preparation," and that it be prepared "at or near the time of the act, condition or event." ORS 41.690. The matter stated in the report is highly relevant to the issues at trial. ³

The question remains whether the report "was made in the regular course of business." ORS 41.690. The mere fact that records are routinely prepared does not satisfy this requirement. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). The statutory phrase "regular course of business" is a term of art which came into the statute "saturated with history." Hoffman v. Palmer, 129 F.2d 976, 984 (2d Cir. 1942), aff'd, Palmer v. Hoffman, supra :

" * * * Those words had come to be a short-hand expression or symbol for a doctrine, the essence of which is the reliance on records where the circumstances in which they were made furnish sufficient checks against inducements to misstate to make them trustworthy, give them 'some badge of truthfulness.' " 129 F.2d at 980-81.

It is "the character of the records and their...