Ward v. Motor Vehicles Division , 50 Or. App. 19 ( 1981 )

RICHARDSON, P.J.

Petitioner’s driver’s license was suspended pursuant to ORS 482.540¹ because of his alleged refusal to submit to a breathalyzer test following his arrest for driving under the influence of intoxicants (DUII). Respondent appeals the trial court’s decision quashing the suspension order.² The sole issue is whether in a proceeding under ORS 482.550, it was relevant that petitioner was not in fact driving a motor vehicle at the time of his arrest.

In his petition for review, petitioner contested all the statutory prerequisites to suspension required in ORS 482.550. During the trial before the court, petitioner testified and called one witness on his behalf. Respondent called the arresting officer. Respondent also introduced into evidence the arresting officer’s sworn report prepared pursuant to ORS 487.805(3).³

At the request of both parties, the trial court rendered specific findings of fact as follows:

"(1) The police officer who requested that petitioner submit to a breath test had reasonable grounds to believe petitioner was driving a motor vehicle immediately prior to his arrest for driving under the influence of intoxicants in violation of ORS 487.540;

"(2) The police officer also had reasonable grounds to believe petitioner was under the influence of intoxicants at the time of his arrest;

"(3) The petitioner did not in fact drive a motor vehicle prior to his arrest for driving under the influence of intoxicants in violation of ORS 487.540;

"(4) Petitioner was informed of the consequences of refusing to take the breath test, within the meaning of ORS 482.540(1); 482.550(1) and 487.560(1); and

"(5) Petitioner was informed of his right to obtain an independent chemical test to determine the alcohol content of his blood as provided by ORS 487.810.”

Based on the above findings, the trial court held that respondent was not entitled to suspend petitioner’s driving privileges because "petitioner had not driven a motor vehicle on the evening of his arrest for driving under the influence of intoxicants.” The court, therefore, quashed the suspension order.

ORS 482.550(2) sets forth the issues to be considered in this license suspension hearing:

"(2) The scope of the hearing shall be limited to:

"(a) Whether the person at the time he was requested to submit to a test was under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance;

"(b) Whether the police officer had reasonable grounds to believe, at the time the request was made, that the person refusing to submit to the test had been driving under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance;

"(c) Whether the person refused to submit to a test;

"(d) Whether such person was informed of the consequences, under ORS 482.540 to 482.560, of his refusal to submit to the test; and

"(e) Whether such person was informed of his rights as provided in ORS 487.810.” (Emphasis supplied.)

De novo review by the circuit court is limited to the same questions. Ames v. Motor Vehicles Division, 16 Or App 288, 517 P2d 1216 (1974). Whether petitioner was in fact actually driving the vehicle while under the influence of intoxicants was irrelevant. That determination is not one of the statutory questions for the circuit court’s review. The relevant question was whether the arresting officer had reasonable grounds to believe petitioner had been driving under the influence of intoxicants. Leabo v. SER/Motor Vehicles Division, 46 Or App 55, 610 P2d 317, rev den 289 Or 337 (1980); cf. Andros v. Dept. of Motor Vehicles, 5 Or App 418, 425, 485 P2d 635 (1971); Thorp v. Dept. of Motor Vehicles, 4 Or App 552, 558, 480 P2d 716 (1971). The trial court, therefore, erred in quashing the suspension order.

Respondent submits that the trial court specifically found adversely to petitioner on all of the statutory prerequisites to suspension provided in ORS 482.550(2) and suggests that we reverse the trial court’s determination and reinstate the suspension order. As the court’s findings indicate, however, the court did not render a finding as to all the statutory issues. There is no finding on the issue of whether petitioner refused to submit to the breathalyzer test. ORS 482.550(2)(c). Under ORS 482.560, petitioner was entitled to a determination of that issue. We, therefore, reverse the trial court’s order and remand the case for that determination based on the evidence presented at trial.

Reversed and remanded.

1 ORS 482.540, in part, provides:

"(I) Upon receipt of the report of a police officer as required in subsection (2) or ORS 487.805, and in accordance with subsection (2) of this section and subsection (1) of ORS 482.550, the division shall suspend the reported person’s license, permit or privilege to drive a motor vehicle in this state for a period of 120 days.

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2 Petitioner appealed the suspension order to the circuit court pursuant to ORS 482.560. ORS 482.560 provides:

"(1) If, after a hearing as provided by ORS 482.540 and 482.550, an order of suspension is issued, the person shall have the right, within 30 days after he receives notice of the order of suspension, to appeal the matter by filing a petition in the circuit court for the county where he resides. The court upon receipt of the petition shall set the matter for trial upon 10 days’ notice to the division and to the appellant. The trial in the circuit court shall be de novo and the appellant shall have the right to a jury as provided in criminal actions.

"(2) No order of suspension issued in accordance with subsection (1) of ORS 482.550 shall take effect until the time to appeal has expired. If an appeal is filed, the order of suspension shall take effect when affirmed on appeal or when the appeal is dismissed.”

3 ORS 487.805(3) provides:

"If a person refuses a chemical test under subsection (2) of this section, the police officer shall prepare a sworn report of the refusal and cause it to be delivered to the division. The report shall disclose:

"(a) Whether the person, at the'time the person was requested to submit to a test, was under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance;

"(b) Whether the police officer had reasonable grounds to believe, at the time the request was made, that the person refusing to submit to the test had been driving under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance;

"(c) Whether the person refused to submit to a test;

"(d) Whether such person was informed of the consequences, under ORS 482.540 to 482.560 and this section, of a refusal to submit to the test; and

"(e) Whether the person was informed of the person’s rights under ORS 487.810.”