Opinion
9001-00511; CA A64864
Submitted on record and briefs December 17, 1990
Reversed and remanded June 5, 1991
Appeal from Circuit Court, Multnomah County.
Richard J. Burke, Senior Judge.
Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Meg E. Kieran, Assistant Attorney General, Salem, filed the brief for appellant.
Robert R. Dickey, Jr., and Dickey Dickey, Medford, filed the brief for respondent.
Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.
PER CURIAM
Reversed and remanded with instructions to reinstate suspension order in accordance with Wimmer v. MVD, 83 Or. App. 268, 730 P.2d 1297 (1986).
Respondent was arrested for DUII. ORS 813.010. At the jail, he was advised of his rights and of the consequences of refusing to submit to a breath test. When he was asked to submit to the test, he said that he wished to speak with his attorney first. He was given two opportunities to do so but was unsuccessful, because his attorney was out of town. The officer asked him again if he would take the breath test. Respondent answered that he would not until his attorney was present, which could not be until the next day. The officer treated that response as a refusal and notified respondent of his intent to suspend his driving privileges. Twenty minutes had elapsed from the time of the officer's first request. Respondent then agreed to take the test but was told that it was too late.
MVD upheld the suspension order. On review, the circuit court reversed, concluding that a motorist may have a reasonable time to recant his refusal if the delay would not materially alter the test results. We review MVD's order for substantial evidence and errors of law. ORS 183.450(4); Shakerin v. MVD, 101 Or. App. 357, 790 P.2d 1180 (1990). Its findings are supported by substantial evidence, and MVD did not err in concluding that respondent had refused to submit to the test. Bergstrom v. MVD, 104 Or. App. 141, 799 P.2d 673 (1990). The trial court erred.
Reversed and remanded with instructions to reinstate suspension order in accordance with Wimmer v. MVD, 83 Or. App. 268, 730 P.2d 1297 (1986).