Stratikos v. Department of Motor Vehicles
Decision Date | 03 December 1970 |
Citation | 4 Or.App. 313,477 P.2d 237 |
Parties | Louis Anest STRATIKOS, Respondent, v. State of Oregon, DEPARTMENT OF MOTOR VEHICLES, Driver's License Division, Appellant. |
Court | Oregon Court of Appeals |
Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Nicholas D. Zafiratos, Astoria, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and LANGTRY and BRANCHFIELD, JJ.
This is an appeal by the Department of Motor Vehicles from judgment of the circuit court to which the case was tried without a jury. It was held that the plaintiff has not refused to take a breathalyzer test as required by the Act entitled 'Implied Consent Law.' ORS 482.540 through 482.580 and 483.634 through 483.646.
The Oregon Supreme Court in Heer v. Dept. of Motor Vehicles, 252 Or. 455, 450 P.2d 533 (1969), and Burbage v. Dept. of Motor Vehicles, 252 Or. 486, 450 P.2d 775 (1969), upheld the statutes. Burbage held that the appeal to the circuit court from the Department's administrative determination of loss of driver's license, provided by ORS 482.560, is a civil action.
The evidence was that after the plaintiff's arrest the arresting officer, having reasonable grounds to believe plaintiff was driving the vehicle and was under the influence of alcohol, requested him to submit to a breathalyzer test. The plaintiff answered, 'I'll not take the test without my attorney present.' The Department administratively found this was a refusal and imposed the statutory sanction of loss of driver's license. As previously noted, on appeal to the circuit court it was held that what plaintiff said did not amount to refusal to take the test.
Plaintiff asserts, 'The key question is whether or not the taking of a breath test is at such a critical stage of a criminal proceeding so as to require the presence of counsel as guaranteed by Wade.' (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). As noted above, Burbage holds that this is a civil proceeding. There is no threat to plaintiff's personal freedom. The only sanction is loss of driver's license for 90 days. ORS 483.634(3), Inter alia, expressly provides that evidence of a refusal to take the test shall not be admissible in any criminal action.
Other jurisdictions in which the same question has been tried have rejected plaintiff's contention. In State v. Pandoli, 109 N.J.Super. 1, 262 A.2d 41 (1970), the petitioner contended that there was no flat refusal to take the test where he refused to take the test until he had an opportunity to call his attorney. As in the case at bar, the upshot of the demand was that he did not take the test. The court said:
109 N.J.Super. at 4, 262 A.2d at 42.
A line of California cases has held that a qualified refusal to take the test, the qualification being that attorney or physician be present, is a refusal calling for loss of driver's license, and this is so even though the...
To continue reading
Request your trial-
Prideaux v. State, Dept. of Public Safety
... ... PRIDEAUX, Petitioner, Appellant, ... STATE of Minnesota, DEPARTMENT OF PUBLIC SAFETY, Respondent ... No. 45862 ... Supreme Court of ... problem. The fact that the intoxicated person is operating a motor vehicle does not change the basic cause of the problem. If the crime of ... Nebraska State Dept. of Motor Vehicles, 191 Neb. 704, 217 N.W.2d 177 (1974); Rusho v. Johns, 186 Neb. 131, 181 ... 1973); Robertson v. State etc., 501 P.2d 1099 (Okl.1972); Stratikos v. Dept. of Motor Vehicles, 4 Or.App. 313, 477 P.2d 237 (1970), petition ... ...
-
Lepire v. Motor Vehicles Division
... ... 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 ... See Burbage v. Dept. of Motor Vehicles, 252 Or. 486, 450 P.2d 775 (1969); Stratikos v. Dept. of Motor Vehicles, 4 Or.App. 313, 477 P.2d 237, 478 P.2d 654, rev. den. (1971). Therefore, Confrontation Clause issues which might ... ...
-
State v. Scharf
... ... the choice as a refusal and report it as such to the Division of Motor Vehicles under ORS 487.805(2). Cf. Capretta v. Motor Vehicles Div., 29 ... Dept. of Motor Vehicles, 252 Or. 486, 450 P.2d 775 (1969); Stratikos v. Dept. of Motor Vehicles, 4 Or.App. 313, 477 P.2d 237, 478 P.2d 654 ... ...
-
State v. Epperson
... ... Swenumson v. Iowa Department of Public Safety, 210 N.W.2d 660, 663 (Iowa ... 1973). Defendant's ... Carson, 512 P.2d 825 (Okl.Cr.1973); Stratikos v. Dept. of Motor Vehicles, 4 Or.App. 313, 477 P.2d 237 (1970); ... ...