Opinion
84-1498-E; CA A39516
Argued and submitted September 16, 1986.
Reversed and remanded with instructions December 31, 1986.
Appeal from the Circuit Court, Josephine County, Gerald C. Neufeld, Judge.
Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, 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, Presiding Judge, and Warren and Rossman, Judges.
PER CURIAM
Reversed and remanded with instructions to enter order of suspension for one year from date of entry of order, less 45 days.
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 (1985), which reinstates MVD's order of suspension, suspending petitioner's driving privileges for one year, as required by ORS 482.545(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.
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.
MVD's suspension order, in its original form, suspended petitioner's driving privileges from September 4, 1984, to September 4, 1985.
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.