Hilton v. Motor Vehicles Division ( 1988 )

BUTTLER, J.,

specially concurring.

Although I agree with the majority’s disposition of the case, I would not reach the constitutional question. I would apply the plain language of the Implied Consent Law to hold that the scope of a hearing held under former ORS 482.541(4) must include the question of whether the respondent was operating a motor vehicle on a highway of this state. Former ORS 487.805(f);¹ but see Ward v. Motor Vehicles Division, 50 Or App 19, 621 P2d 674 (1981); Leabo v. SER/Motor Vehicles Division, 46 Or App 55, 610 P2d 317, rev den 289 Or 337 (1980).

As the Supreme Court held in Pooler v. MVD, 306 Or 47, 755 P2d 701 (1988), the scope of a hearing necessarily includes the validity of the respondent’s arrest, because a valid arrest is a predicate to a valid demand for a breath test. By the same token, the scope of a hearing must necessarily include a determination of whether the person was operating the motor vehicle, not only because he would not have been driving under the influence if he was not driving the automobile, but also because he was not subject to the Implied Consent Law unless he was driving.

Warden, J., joins in this specially concurring opinion.

1 Former ORS 487.805(1), now ORS 813.100(1), provided:

“(1) Any person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person’s breath for the purpose of determining the alcoholic content of the person’s blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance. A test shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance. Before the test is administrered the person requested to take the test shall be informed of consequences and rights as described under ORS 813.130.”