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In re Suspension of Driving Privileges of Ellicot

Court of Appeals of Oregon

May 2, 2018

In the Matter of the Suspension of the Driving Privileges of Nancy Jean Dwyer ELLICOT, Petitioner-Respondent,
v.
DRIVER AND MOTOR VEHICLE SERVICES DIVISION (DMV), a division of the Department of Transportation, Respondent-Appellant.

          Submitted March 6, 2017.

          Multnomah County Circuit Court 15CV31801; Angel Lopez, Judge.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, fled the briefs for appellant.

          Joshua C. Gibbs and Reynolds Defense Firm fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: The Driver and Motor Vehicle Services Division (DMV) appeals a circuit court judgment setting aside an administrative order suspending petitioner's driving privileges for one year. DMV argues that the circuit court erred in reversing that order because substantial evidence supports the administrative law judge's (ALJ) findings of fact, and those findings support the legal conclusion that petitioner had refused to provide a urine sample following her arrest for driving under the influence of intoxicants. Held: The circuit court erred in setting aside the order because the ALJ's findings of fact are supported by substantial evidence, and the facts established that petitioner had refused to take the urine test.

         Reversed and remanded with instructions to reinstate DMV order suspending petitioner's driving privileges.

         [291 Or.App. 567] TOOKEY, J.

         The Driver and Motor Vehicle Services Division (DMV) appeals a circuit court judgment setting aside an administrative order suspending petitioner's driving privileges for one year. DMV argues that the circuit court erred in reversing that order because substantial evidence supports the administrative law judge's (ALJ) findings of fact, and those findings support the legal conclusion that petitioner had refused to provide a urine sample following her arrest for driving under the influence of intoxicants (DUII).[1]For the reasons that follow, we reverse and remand.

         "Although this case comes to us on appeal from the circuit court, we review the underlying administrative order to determine whether the ALJ correctly interpreted and applied the law and whether the order is supported by substantial evidence." Bianco v. DMV, 257 Or.App. 446, 448, 307 P.3d 470 (2013). "We review the ALJ's legal conclusion"-that petitioner refused the urine test-"for legal errors." Fitzpatrick v. DMV, 236 Or.App. 113, 117, 235 P.3d 701 (2010). We state the facts consistently with the ALJ's factual findings. Bianco, 257 Or.App. at 448.

         Officer Dickinson was dispatched to the scene of a single-vehicle traffic crash. Upon arriving, Dickinson observed emergency medical technicians (EMTs) attending to petitioner. The EMTs told Dickinson that petitioner was stable and that she appeared to be intoxicated. Dickinson noticed that petitioner had "droopy eyes and slurred speech" and detected "a sweet smell similar to the odor of alcoholic beverages emanating from [p]etitioner." Dickinson requested that petitioner perform some field sobriety tests; he observed six clues from the horizontal gaze nystagmus [291 Or.App. 568] test and noticed that petitioner was exhibiting poor balance, at one point nearly falling over. Thereafter, Dickinson arrested petitioner for DUII.

         At the police station, Officers Villanti and Bernard similarly observed that petitioner "had slurred speech, droopy eyelids, and slow movements" and detected "a sweet smell similar to the odor of alcoholic beverages emanating from [p]etitioner." Believing that petitioner was impaired, the officers had petitioner take a breath test; that test "disclosed a blood alcohol content of 0.00 percent by weight." Before asking petitioner to submit a urine test, Bernard read Section II of the implied consent form verbatim to petitioner. That section of the form provided:

"(a) If you refuse to submit to a urine test, the length of the suspension period will be the same as if you had refused a breath test. If you provide a urine sample, you will be given privacy and may not be observed ...

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