Capretta v. Motor Vehicles Division ( 1977 )

TANZER, J.

This is an appeal by the Motor Vehicles Division of the Department of Transportation from a circuit court order reversing an order of the Division suspending petitioner’s operator’s license for having refused to take a breathalyzer test as required by ORS 487.805(2) of the Implied Consent Law.

Petitioner was arrested for driving under the influence at approximately 4:15 p.m. He was transported to the Lincoln County Jail. During the ride to the jail he requested counsel. The officer and petitioner arrived at the jail at approximately 5 p.m. After a wait of approximately a half hour, the officer and the petitioner entered the booking room and at approximately 5:30 p.m. a call was placed to counsel. Somewhere between five and fifteen minutes later counsel arrived. The following statement by petitioner’s counsel is an accurate report of the events following counsel’s arrival:

"* * * Officer Deserano said he wished to administer the breath test, that he was prepared to do so, and I said I would like to speak with the defendant for a few minutes first. He said, No, I can’t do that,’ and I said, Well, I’d like to talk to him before he takes the test.’ And he says, T cannot let him out of my sight. I’m in control of the situation. If the test cannot be administered the way I want it to be, then I’ll have to write it up as a refusal.’ I said, 7 would just like to talk to him briefly for a few minutes. I will assure you that he will not take anything by mouth.’ He said, 'I can’t let him out of my sight, I will go in another comer of the room and plug my ears or something and you can talk to him.’ I said, 'I would prefer to talk to him privately.’ Then there was some colloquy on the tape, which actually took place when the officer asked him if he would submit to a breath test, and he said that he would submit to a breath test if he could talk to his attorney first. And I reiterated to the officer that yes, he would submit to a breath test if he could talk to me for a few minutes first. The officer said that had to be a refusal because he had to observe him and keep him within his observation, and so he said, We will have to write this up as a refusal, then, Gordon.’ And I said okay.

The officer was acting in apparent compliance with the Health Division rules which require:

"The operator must make certain the subject has not taken anything by mouth (drinking, smoking, eating, taking medications, etc.) vomited, or regurgitated liquid from his stomach into his mouth for at least fifteen minutes before taking the test.” OAR 333-13-020(l)(b) and 333-13-022(l)(b).

The trial court held that the refusal to take the test until after unobserved conference with counsel did not constitute a refusal under the statute. We have held to the contrary. In Lundquist v. Motor Vehicles Div., 23 Or App 507, 543 P2d 29 (1975), we held that there was no constitutional right to counsel in these civil proceedings, and that a refusal to take the breath test until after a conference with counsel was a refusal within the meaning of the Implied Consent Law. As in the earlier cases of Cavagnaro v. Motor Veh. Div., 19 Or App 725, 728-29, 528 P2d 1090 (1974), and Stratikos v. Dept. of Motor Vehicles, 4 Or App 313, 315-16, 477 P2d 237, 478 P2d 654 (1970), rev den (1971), we quoted with approval the observation from State v. Pandoli, 109 NJ Super 1, 4, 262 A2d 41 (1970), that

"* * * it is sensible to construe the statute to mean that anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the test constitutes a refusal to do so. * * * The occasion is not one for debate, maneuver or negotiation, but rather for a simple 'yes’ or 'no’ to the officer’s request.”

The trial court distinguished the Lundquist case on the ground that counsel was present here at the time of the refusal. Whether counsel is available at the station or at the other end of a telephone line is not a pertinent distinction. This case presents no issue of denial of counsel because the police facilitated access to counsel. Thus we need not address thorny constitutional and exclusionary principles. The issue here is whether petitioner’s insistence upon isolated access to counsel must take precedence over the need of the police to maintain control of the testing situation. Petitioner’s insistence, through his lawyer, upon leaving the visual as well as the aural observation of the officer during the period of the tests to confer with counsel, gives us no cause to depart from our firmly established rule that a failure to assent upon request is a refusal under ORS 487.805(2).

Reversed.