Appeal from Circuit Court, Clackamas County. Howard J. Blanding, Judge.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Terry G. Hannon, Gresham, argued the cause and filed the brief for respondent.
Schwab, Chief Judge, and Fort, Judge. Thornton, Judge, dissenting.
The Department of Motor Vehicles suspended plaintiff's driver's license for 90 days on the grounds that he refused to submit to a breathalyzer test after being arrested for driving under the influence of intoxicating liquor. ORS 482.540; ORS 483.634 et seq. Plaintiff initiated this proceeding to challenge that suspension. Judgment was entered in the trial court reversing the suspension order, and the Department appeals.
This case was submitted to the jury by special interrogatories which the jury answered as follows:
"1. Did the police officer have reasonable grounds at the time of the request to believe the plaintiff had been driving while under the influence of intoxicating liquor?
"2. Did the plaintiff refuse to take the breath test?
"3. Was the plaintiff informed of the consequences of the refusal to take the breath test?
"4. Was the plaintiff informed of the right to take the chemical test in addition to the breath test?
Neither party here argues that the first or second questions were improperly submitted to the jury. At trial the Department moved to withdraw the third and fourth questions from the jury, i.e., moved for a directed verdict as to those issues. The trial court's denial of that motion is the basis of the Department's sole assignment of error.
As a prerequisite to a valid license suspension for refusing to submit to a breathalyzer test, the police are required to inform a driver of certain rights and consequences of his refusal. ORS 483.634(2); see, Palmer v. Dept. of Motor Vehicles, 7 Or App 219, 490 P2d 526 (1971). The information that must be conveyed to a driver is stated in a document received into evidence without objection, one portion of which reads:
"CONSEQUENCES AND RIGHTS OF REFUSAL OF BREATH TEST
"If you refuse to take a breath test:
"1. Your driver's license will be suspended for 90 days.
"2. Upon your request, you will be granted a hearing. If the hearing result is adverse to you, you may appeal the matter to the circuit court for a trial.
"3. You will be permitted, upon your request and at your own expense, reasonable opportunity to obtain the services of a doctor or surgeon, licensed nurse, qualified technician or chemist of your choosing to administer a chemical test or tests to determine the alcohol content of your blood, in addition to the one given by a police officer.
"Do you understand what has just been read to you? Will you now take a breath test to determine the alcoholic content of your blood?
"Requesting officer Dennis Carmody