*1 552 January
Argued February 11, reversed THORP, Respondent, v. DEPARTMENT OF VEHICLES, Appellant.
MOTOR
SCHWAB, J. having operator’s Plaintiff, had his motor vehicle suspended provisions license under the of OES 482.540 refusing police request for officer’s he take a test he after had been arrested for driving, appealed drunken circuit court in the 482.560(1). ‹ provided by manner OES Over the state’s objection right the trial court refused state the jury having trial, and, taken the evidencе without jury, requested found that the who officer had to take test did not have reasonable doing rulings so. These two are basis appeal state’s court. legislature Implied
In enacted the Consent OES 483.634. › This obviously Law, statute was de ‹ ORS 482.560(1) provides: hearing “If, provided 482.550, after a ORS 482.540 and suspension issued, an order of is shall have the *3 days right, within 30 after he recеives notice of the order of appeal by filing suspension, petition to matter the a in the county
circuit court for the where he resides. The court receipt petition upon upon of the shall set the matter for trial days’ appellant. to .the division to the notice The trial appellant in circuit court shall be de nоvo and the the shall jury provided right the to a in have as criminal actions.” › ORS 483.634 provides: operates “(1) Any person upon a motor who vehicle the given highways be to consent, of this state shall deemed have subject 483.646, a to ORS 483.634 to to chemical test of his purpose determining for of the alcoholic breath the content driving for a motor blood if arrested vehicle while of his under intoxicating liquor in violation of of subsection the influence municipal (2) A test or of a ordinance. shall -of ORS 483.992 request police upon having of a officer administered the be person grounds to believe the arrested to have reasonable intoxicating driving liquor of under the influence while been (2) municipal of ORS 483.992 or a subsection of of
in violation ordinance. driving person “(2) for a under arrest motor If a vehicle intoxicating liquor of in influence violation under the while municipal (2) ordinance, a or of of ORS 483.992 of subsection to signed facilitate tlie of drunken drivers prosecution of aleoliolic by objective an evaluation the providing content of the of the so The charged. blood driver legislation does not that a driver so charged require a take the him to with test, encourages but comply he do of a 90-day that so the device request by imposing if he refuses. forfeiture of his driver’s license OKS 482.540(1). fi that any person ORS 483.634 provides request police the а officer to submit to a refuses of provided (1) test in of chemical of his breath as subsection section, person if the has informed of the con- been sequences provided of such refusal as ORS 482.540 to rights provided 483.638, as in 482.560 and of ORS no test his police prepare given, a shall but officer shall sworn be the report the refusal and cause it to be to the of delivered report division. shall disclose: person “(a) requested to at the time he was Whether driving a a arrest motor vehicle submit to test was under intoxicating liquor influence of in violation while under municipal ordinance; (2) of a
of subsection ORS 483.992 of “(b) police to had reasonable officer Whether person rеquest made, believe, at the time the was driving refusing to the test had been under to submit intoxicating (2) liquor in of subsection influence of violation municipal ordinance; 483.992 or of a of ORS test; “(c) person refused to submit to Whether person “(d) informed the conse- was Whether such 482.560, of refusal quences, his ORS 482.540 under test; and to the submit rights “(e) person as informed of his was such Whether provided in ORS 483.638. “(3) person arrest refuses submit under If provisions subsection his under test of breath chemical to chemical tests to consent (2) or refuses of this section 483.636, shall provided his refusal ORS evidence pro- action, any criminal suit or civil or admissible be alleged arising been committed ceeding to have out acts highways on vehiсle a motor while intoxicating liquor.” influence of while fi ORS provides: 482.540(1) required report receipt officer as “Upon of a 483.634, with (2) and in accordance of ORS *4 subsection in (1) ORS of person’s (2) and subsection section of this subsection 482.550, reported suspend the shall division the in this privilege a motor vehicle drive permit to license, days.” periоd of 90 a state for 556 operates upon highways
who a motor vehicle the of by police this state be asked to officer take a breathalyzer scientific the test, test, to determine the incorporates alcoholic content of his blood. The statute safeguards numerous for the individual concerned. prior ones here relevant are that to the request police (1) the officer, driver must have driving, (2) been arrested for drunken making request officer must have reasonable to believe the arrested to have been driving intoxicating liquor. while under the of influence Implied
Since the enactment of the
Consent Law
caught
sought
numerous drivers
in its web have
negate
purpose
arguing
its
that it
is,
effect,
proceeding. They
sought interpreta
criminal
have
practical purposes
tions of the law
all
which would for
prove beyond
require the state to
a reasonable doubt,
equivalent
proceeding,
in what would be
to a criminal
involved was
driver
under the in
intoxicating liquor
precedent
оf
fluence
condition
days
loss of
his
driver’s license
90
for refusal
breathalyzer
e.g.,
Dept.
See,
test.
take
Heer v.
(1969);
Vehicles,
455,
252
450
Motor
Or
P2d 533
of
Burbage Dept.
Vehicles,
v.
Motor
486,
Or
(1969);
Dept.
v.
Motor Vehicles,
P2d 775
Stratikos
(1970),
Sup
App 313,
In the erred in allow- by jury ing plaintiff objection trial to waive over the right apрeal Plaintiff’s state. circuit suspending Vehicle Division’s of the Motor order court for refusal to take license his driver’s provisions of ORS test was 482.560 which right jury provides to a specifically trial. The
557 by not proceeding civil, this statute is authorized criminal. fl supra; Burbage Dept. Vehicles, Motor v. of supra. Dept. Vehicles, Motor v. Stratikos of jury proceedings is in civil con of trial
Waiver
17.035. (cid:176) requirement
by
that waiver
trolled
OES
accomplished
jury
in
actions can
be
of
trial
civil
parties
by
express
action
all
has
consent of
by
interpretation placed
on OES 17.035
been the
Argonaut
years.
Supreme
Insurance
for over
Court
80
413 P2d
19 ALR3d
Ketchen,
v.
When ruling Division, of the Motor Vehicles trative OES fl wording (‘the appellant peculiar of ORS 482.560 “The shall jury provided actions’) right a as in criminal cannot action. have proceеding is into a criminal converted that mean appellant simply that shall be entitled to state words These actions, jury pro jury provided to a trial as in criminal * * Burbage Dept. v. of Motor actions in criminal vided Vehicles, (1969). 486, 491-92, P2d 775 Or
(cid:176) provides: 17.035 ORS parties by jury several be waived to an “Trial contract, fact, and with the in actions on assent issue follоwing: actions, manner in in the other of the court failing appear By “(1) at the trial. consent, attorney, By “(2) in filed written clerk. with the open court, By “(3) entered in the minutes.” oral consent
S58 testimony
above. His was not rebutted. Tbe trial court suspending days 482.540, his driver’s license for 90 for his refusal to take the he bore test, proving by preponderance burden of evi wrongfully suspended. dence that his license was Bur bage Dept. supra, v. Motor Vehicles, v. Heer Dept. supra. sought Motor Vehicles, He to do so by proving requested officer who that he take the test did not have reasonable to believe *6 plaintiff driving that the was under the influence intoxicating liquor. Not was burden not met, but the uncontroverted was evidence such as to lead might us to observe that the officer well have been performance considered derelict in the of his duties requested plaintiff if he had not the to take the test. question proceeding The in a as such this is not, “Was operating the his driver vehicle under the influence?”, grounds it is, “Did officer have reasonablе the to believe that he was?”. August approximately p.m., 22, 1969,
On at 11:30 Bay plaintiff police officer a ing observed the Coos driv- Upon stopping the center line. his vehicle across eyes plaintiff plaintiff’s officer noted the the were dirty disarranged, were and his clothes bloodshot, he unsteady speech appeared on his his feet, was slurred, of alcohol. The his breath smelled officer arrested driving plaintiff Upon the for the influence. appeal suspending from order of his the trial his plaintiff eyes the testified that license, driver’s his a result of his work, that inflamed as his were clothes “pretty put he it, sad,” as that indeed, had were he approximately three cans bеer, that drunk he or not crossed he whether the not recall center did the have cut corner. he that Later in line, but arresting officer testified . as the indicated trial, speech during plaintiff’s the trial that observed clearly as do other does not out as enunciated “come pre- persons.” that all trial court found The 2) (see requisite steps n the loss 483.634, ORS take for refusal to license driver’s except require- complied test with had been grounds police officer have reasonable ment that the plaintiff intoxicated. while believe the correctly Although considered reason- the court grounds probable cause make were the same able errоneously concluded warrant, it an arrest without probable Probable cause or cause. that there was of law which arises is a conclusion reasonable support found. If the facts from facts inference present probable In cause exists. inference, following both facts testified case the were officer: аnd the eyes; (1) Bloodshot Dirty appearance;
(2) and disheveled (3) of alcohol. Odor nothing said about his slurred defendant
speech, pointed out court itself noted above, but as *7 speech continued until the time of slurred trial. deny crossing did not the center defendant
The merely did not that he remember. stated line; he upon there was no which evidence fact testimony police officer, of the and other than the unsteady that the was rebutted, this not on his feet. * * “* stop- case, the instant the defendant In stagger, got
ped, and was seen car, of his out had officers, accosted flushed when 560 incoherently, face and talked and his breath smelled liquors having which he admitted drunk but
a short time before. Evidence of these facts was
cleаrly
justify
sufficient to
the verdict.” State v.
Noble, 119 Or
(1926).
674, 678,
Probable cause for arrest without warrant does require quantum the same of evidence as is re quired support Brinegar a conviction. v. United States, 338 (1948), US 69 160, S Ct L Ed 1302, 93 1879 states: “* * * proved Guilt in a criminal case must be
beyond a reasonable doubt and evidence con- long experience fined to that which in the common- law tradition, some extent embodied in the Con- crystallized stitution, has into rules of evidence with that consistent standard. These rules are historically grounded rights system, of our de- veloped safeguard unjust from men dubious and resulting with convictions, forfeitures life, liberty property. if “However, those standards were to be made applicable determining probable cause for an especially arrest or for search and more seizure, involving moving in cases such as this vehicles used in the commission of crime, few indeed would charged situations in an be the which officer, with protecting public by enforcing interest the law, * # effective action could take Brinegar toward that end #.” States,
v. United
atUS
174.
App
Sup
Keith,
v.
Or
In
The facts in substantially the case at hand are similar to supra, those indicated in Nolle, State v. justify which were held sufficient to conviction. No certainty required provide more is reasonable grounds for an officer to believe that a was driving plaintiff, influence of alcohol. The providing plausible reasons for most of the con- ditions that the officer said he observed, himself provided proof grounds of the believing officer’s for plaintiff that was under the intoxicating influence of liquor. plaintiff admitted that the conditions ex- proceeded explain isted explanation them. The might of the causes conditions rebut an inference they consumption, that arose from they alcoholic but grounds affirmed the existence of the reasonablе for judge jury, belief. A might officer’s trier fact, explanations, have believed all these and found that under the influence of intoxi- cating liquor, but that is not the determination to be arresting made here. Officers under often with exhibiting are faced influence citizens physical variety characteristics which arise from a other than the of causеs influence alcohol. Faced physical conditions here described, with and de- tecting odor of an officer alcohol, has reasonable physical to believe condition is a of alcohol. result *9 en is the legislature
It reasonable to assume that acted Law because the Implied possible Consent of this is of the values of the resolution one ambiguity test. It a provides quick, impartial, of whether a con physical scientific determination to the influence of alcohol directly dition is related behavior. The estab subject’s on presumptions ORS 483.642 – assist in whether determining lished by of the not were result or the observed conditions in determining influence of intoxicating liquor wеll in is as as warranted, pro whether prosecution in of the event The court viding prosecution. evidence could not find that eyes not and plaintiff’s did not not his clothes his bloodshot, disheveled, were that he did not smell slurred, and of alcohol. not speech conclusion that can The reasonable be possible had the officer reasonable to grounds is that drawn was under the influence of plaintiff believe alcohol.
– ORS 483.642 provides: any pro- action, of or criminal “At trial civil suit or arising person driving ceeding out acts committed a of the intoxicating under influence vehicle while of a motor person’s in liquor, amount of alcohol blood at the time analysis рerson’s alleged breath, chemical as shown give following presump- blood, to the or saliva shall rise urine tions: weight percent by “(a) more than .05 of alcohol in Not supports disputable presumption blood, a that he was his not intoxicating liquor. of the influeince then under percent percent by “(b) but less than than .15 More .05 weight blood, is indireсt alcohol in his evidence that of or he determine whether not was then under the to be used intoxicating liquor. of influence weight percent by “(c) of alcohol in less than .15 Not disputable presumption supports blood, that he was his intoxicating liquor, of the influence then under Nothing “(2) in section is intended limit the intro- bearing upon any question comрetent evidence duction person has been the influence of whether intoxicating liquor.” Reversed. specially concurring.
FORT, J.,
majority correctly
The
concludes that since this
proceeding is
in
civil
as we
in
nature,
held
Stratikos v.
Dept.
App
Motor Vehicles, 4
Or