Moore v. State, Motor Vehicles Div. of Oregon Dept. of Transp.

• Jurisdiction: Oregon
• Parties: Dennis Delair MOORE, Respondent on review, v. The STATE of Oregon, MOTOR VEHICLES DIVISION OF the OREGON DEPARTMENT OF TRANSPORTATION, Petitioner on review. In the Matter of the Refusal to Submit to a Breath Test by: John Hiram SCHENK, Respondent on review, v. MOTOR VEHICLES DIVISION, STATE OF OREGON, Petitioner on review. In the Matter of the Refusal to Submit to a Breath Test by: Hugh BUNTEN, Respondent on review, v. MOTOR VEHICLES DIVISION, STATE OF OREGON, Petitioner on review. In the Matter of the Refusal to Submit to a Breath Test by: Samuel Irving JAGGER, Jr., Respondent on review, v. MOTOR VEHICLES DIVISION, STATE OF OREGON, Petitioner on review. In the Matter of the Refusal to Take a Breath Test by: Michael Ernest CARTER, Respondent on review, v. MOTOR VEHICLES DIVISION, STATE OF OREGON, Petitioner on review. SC 28452; CA 18130, CA A20656, CA 18170, CA A20153, CA A21023.
• Citation: Moore v. State, Motor Vehicles Div. of Oregon Dept. of Transp., 652 P.2d 794, 293 Or. 715 (Or. 1982)
• Court: Oregon Supreme Court
• Decision Date: 26 October 1982

Page 794

652 P.2d 794

293 Or. 715

Dennis Delair MOORE, Respondent on review, v. The STATE of Oregon, MOTOR VEHICLES DIVISION OF the OREGON

DEPARTMENT OF TRANSPORTATION, Petitioner on review.

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

John Hiram SCHENK, Respondent on review, v. MOTOR VEHICLES DIVISION, STATE OF OREGON, Petitioner on review.

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

Hugh BUNTEN, Respondent on review, v. MOTOR VEHICLES DIVISION, STATE OF OREGON, Petitioner on review.

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

Samuel Irving JAGGER, Jr., Respondent on review, v. MOTOR VEHICLES DIVISION, STATE OF OREGON, Petitioner on review.

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

Michael Ernest CARTER, Respondent on review, v. MOTOR VEHICLES DIVISION, STATE OF OREGON, Petitioner on review.

SC 28452; CA 18130, CA A20656, CA 18170, CA A20153, CA A21023.

Supreme Court of Oregon.

Argued and Submitted July 14, 1982.

Decided Oct. 26, 1982.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., Stanton F. Long, Deputy Atty. Gen. and William F. Gary, Sol. Gen., Salem.

Ronald D. Thom and Zack M. Lorts, Oregon City, filed a response to the petition for respondent on review Schenk.

Terrence B. O'Sullivan of Merrill & O'Sullivan, Bend, filed a response to the petition for respondent on review Carter. Oral argument was waived as to all respondents on review.

[293 Or. 717-A] No appearance for respondents on review Moore, Bunten and Jagger.

Before LENT, C.J., and LINDE, PETERSON, TANZER, CAMPBELL and CARSON, JJ.

TANZER, Justice.

In each of these five consolidated cases, the Court of Appeals, Carter v. Motor Vehicles Division, 55 Or.App. 535, 638 P.2d 1180, Jagger v. Motor Vehicles Division, 55 Or.App. 535, 638 P.2d 1180, Moore v. Motor Vehicles Division, 55 Or.App. 510, 638 P.2d 1171, Schenk v. Motor Vehicles Division, 55 Or.App. 535, 638 P.2d 1181, Bunten v. Motor Vehicles Division, 55 Or.App. 515, 639 P.2d 135 reversed a Motor Vehicles Division (MVD) order suspending a driver's license which the court held to be invalid under the Implied Consent Act, ORS 487.805 et seq. In each case, the licensee, upon being requested to submit to a breath test, asked or demanded to speak to an attorney. We allowed the state's petition for review to attempt to clarify principles applicable to drivers' license suspension proceedings.

The Motor Vehicles Division issued these orders pursuant to ORS 482.540 which requires the agency to suspend an operator's license for 120 days upon receipt of notice that the motorist has refused a chemical test of his breath. The Implied Consent Act provides that a motorist impliedly consents to chemical testing of his breath if he is arrested for driving under the influence of intoxicants and if a police officer having probable cause to believe he committed the offense asks him to submit to a breath test. ORS 487.805(1) provides:

"Any person who operates a motor vehicle upon the highways of this state shall be deemed to have given consent, subject to ORS 487.805 to 487.835, to a chemical test of the person's breath for the purpose of determining the alcoholic content of the person's blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance. A test shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance."

ORS 487.805(2) sets out request and refusal procedures. It is phrased in the negative; that is, the test may not be administered if, after advice of the consequences of refusal (license suspension) and the permissibility of an independent test, the person refuses to submit to the test. ORS 487.805(2) states:

"No chemical test of the person's breath shall be given, under subsection (1) of this section, to a person under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance, if the person refuses the request of a police officer to submit to the chemical test after the person has been informed of:

(a) The consequences of a refusal under ORS 482.540 to 482.560 and this section; and

(b) The person's rights [to independent testing] under ORS 487.810."

Taken together, ORS 482.540 and 487.805 provide a procedure whereby the state may suspend drivers' licenses. The statutes divide assigned procedural responsibilities among different agencies, namely police agencies and the Motor Vehicles Division. ¹ Unlike situations where the action of one governmental agency may not bind another, these statutes establish one procedure culminating in a single state action, a license suspension, even though at least two agencies perform the requisite acts upon which that action is based. Therefore, in this statutory setting, an examination into the lawfulness of MVD orders must include scrutiny of both police action and MVD action for statutory and constitutional validity.

The Court of Appeals, with two opinions citing our plurality holding in State v. Newton, 291 Or. 788, 636 P.2d 393 (1981) (decided after these cases were submitted in the Court of Appeals), vacated the suspensions. Newton is distinguishable in that it is a criminal case regarding suppression or admissibility of evidence, whereas these cases present a civil review of the legality of administrative action. Nevertheless, several premises to the Newton decision are pertinent here. Most significant was our holding that an arrested person is entitled to communicate with counsel or others and that the police must reasonably accommodate a request to do so unless it would interfere with their duties. The plurality opinion identified the Fourteenth Amendment as the source of this liberty to communicate and the separate opinions looked to other sources, but all members of the court agreed that it exists and that it is subject to reasonable restriction for lawful police purposes. We said:

" * * * Defendant's freedom to call a lawyer before deciding to submit to breathalyzer testing was not safeguarded in this situation by the Sixth or Fourth Amendments, but, under the Fourteenth Amendment, his freedom to do so could not be foreclosed or deferred unless the police were authorized to do so. Defendant's liberty to communicate as he chose was to be free from 'purposeless restraints,' but subject to lawful restraints. * * * " (Our emphasis.) Id. at 806-807, 636 P.2d 393.

The most compelling source of "lawful restraints" in the Implied Consent Act cases relate to the fact that blood alcohol dissipates with the passage of time. We recognized that promptness was necessary:

"The police may lawfully restrict the freedom of an arrested person to communicate to the degree reasonably required for the performance of their duties. For example, where the police are authorized to seize 'highly evanescent evidence,' see [State v.] Heintz, 286 Or. [239] at 248 [594 P.2d 385], and delay caused by an attempt to call counsel would impair their ability to effectively do so, they may require that the arrested person's exercise of the freedom to call be deferred until after completion of the seizure." Id. at 807-808, 636 P.2d 393.

Because the Newton record showed no circumstances which would justify denying the defendant an opportunity to call his lawyer, we held that the denial violated the defendant's rights and the breath test was unlawfully obtained. Our decision not to suppress the result of the test in a resulting criminal prosecution does not diminish the substantive holding that an unjustified refusal to allow an arrested person to call counsel is unlawful. That holding has different consequences where, as here, the decisional inquiry is the lawfulness of an agency's action rather than whether unlawfully obtained but trustworthy evidence should be admissible in a criminal prosecution.

In this case, the scope of a hearing challenging Implied Consent Act orders of suspension is governed by ORS 482.550(2):

"The scope of the hearing shall be limited to:

(a) Whether the person at the time he was requested to submit to a test was under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance;

(b) Whether the police officer had reasonable grounds to believe, at the time the request was made, that the person refusing to submit to the test had been driving under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance (c) Whether the person refused to submit to a test;

(d) Whether such person was informed of the consequences, under ORS 482.540 to 482.560, of his refusal to submit to the test; and

(e) Whether such person was informed of his rights as provided in ORS 487.810."

Judicial review of the administrative order of suspension is allowed by ORS 482.560(1):

" * * * 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."

We take the reference to "trial * * * de novo" to mean that the same issues, those specified in ORS 482.550(2), are presented on judicial review as were material at the administrative hearing.

The argument in this case has focused on ORS 482.550(2)(c), "Whether the person refused to submit to a test." The state contends that we should adopt the rule applied by the Court of Appeals in Stratikos v. Dept. of Motor Vehicles, 4 Or.App. 313, 477 P.2d 237, 478 P.2d 654 (1970), rev. den. (1971); see also Lundquist v. Motor Vehicles Div., 23 Or.App. 507, 543 P.2d 29 (1975), and Cavagnaro v. Motor Veh. Div., 19 Or.App. 725, 528 P.2d 1090 (1974), that anything other than...