Wimmer v. Motor Vehicles Division

730 P.2d 1297 (1986) 83 Or.App. 268

In the matter of the Suspension of the Driving Privileges of William D. WIMMER.
William D. Wimmer, Respondent,
v.
Motor Vehicles Division, Appellant.

84-1498-E; CA A39516.

Court of Appeals of Oregon.

Argued and Submitted September 16, 1986. Decided December 31, 1986.

Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Clayton C. Patrick, Grants Pass, argued the cause for respondent. On the brief were Michael L. Mowrey, and Burrows, Hull, Mowrey & Thompson, Grants Pass.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

PER CURIAM.

Motor Vehicles Division (MVD) appeals from the circuit court judgment on remand from this court, Wimmer v. MVD, 75 Or. App. 287, 706 P.2d 182, rev. den. 300 Or. 367, 712 P.2d 109 (1985), which reinstates MVD's order of suspension, suspending petitioner's driving privileges for one year, as required by ORS 482.545(1).^[1] MVD argues that the trial court, which had previously vacated the suspension order, erred on remand by reinstating it in its original form instead of ordering petitioner's driving privileges suspended for an additional 320 days. Due to the lapse in time, the net effect of the vacation and reinstatement is that petitioner's driving privileges were suspended for only 45 days.^[2]

The mandate in Wimmer v. MVD, supra, provided: "Reversed and remanded with instructions to reinstate the Division's order of suspension." Although we should have phrased our mandate differently, the statute is clear: petitioner's driving privileges must be suspended for a total of one full year. See Wolfgang v. Thiele Co., 141 Or. 280, 17 P.2d 313 (1932).

Reversed and remanded with instructions to enter order of suspension for one year from the date of entry of order, less 45 days.

NOTES

[1] Petitioner's driving privileges were suspended because he had refused to submit to a breath test on request by a police officer after being arrested for driving under the influence of intoxicants.

[2] MVD's suspension order, in its original form, suspended petitioner's driving privileges from September 4, 1984, to September 4, 1985.