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Shields v. Motor Vehicles Division

Oregon Court of Appeals
Jul 16, 1986
722 P.2d 36 (Or. Ct. App. 1986)

Opinion

A8412-07104; CA A35255

Argued and submitted November 13, 1985.

Reversed July 16, 1986.

Appeal from Circuit Court, Multnomah County, Kristena A. LaMar, Judge.

Robert M. Atkinson, 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.

John Henry Hingson III, Oregon City, argued the cause and filed the brief for respondent.

Before Buttler, Presiding Judge, and Warren and Rossman, Judges.


PER CURIAM

Reversed; Division's order of suspension reinstated.


The Motor Vehicles Division appeals from the judgment of the circuit court reversing the administrative suspension of petitioner's driving privileges after he registered above .08 percent blood alcohol content on a police administered breath test. The trial court held that the suspension was invalid, because petitioner was not informed of his right to obtain an independent chemical test if he took the breath test and registered less than .08 percent, of his right to an independent chemical test of his breath or blood for the purpose of determining the alcohol content of his blood and of his right to an independent chemical test to determine the presence of a controlled substance in his person.

The advice given petitioner was the same as that given in Wimmer v. MVD, 75 Or. App. 287, 706 P.2d 182, rev den 300 Or. 367 (1985). Petitioner was informed of his right to independent tests to determine the blood alcohol content of his blood if he registered .08 percent or more. Because he registered more than .08 on the breath test, he could not have been prejudiced by the advice. We reverse and reinstate the order of suspension. Wimmer v. MVD, supra.

The advice reads:
"IF YOU TAKE THE BREATH TEST and the instrument shows your blood alcohol level as .08% or higher, you are considered to be under the influence of intoxicating liquor. In that case:
"1. You may have a reasonable opportunity to have a doctor, licensed nurse, qualified technician, chemist, or other qualified person of your choosing, give you a chemical test or tests to determine the alcohol content of your blood. This test is in addition to the breath test given to you by a police officer. You must pay for any test given at your request."

Reversed; order reinstated.


Summaries of

Shields v. Motor Vehicles Division

Oregon Court of Appeals
Jul 16, 1986
722 P.2d 36 (Or. Ct. App. 1986)
Case details for

Shields v. Motor Vehicles Division

Case Details

Full title:In the Matter of the Suspension of the Driving Privileges of: SHIELDS…

Court:Oregon Court of Appeals

Date published: Jul 16, 1986

Citations

722 P.2d 36 (Or. Ct. App. 1986)
722 P.2d 36