Shields v. Motor Vehicles Division

722 P.2d 36, 80 Or. App. 314

• Court: Court of Appeals of Oregon
• Decided: July 16, 1986
• Docket: A8412-07104; CA A35255
• Status: Published

Opinion

PER CURIAM

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 P2d 182, rev den 300 Or 367 (1985).¹ 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.

Reversed; order reinstated.

1 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.”