dissenting.
The majority ignores the context within which the critical statutory passage occurs, and thereby replaces a duly enacted statute with one more to its pleasing. That is not our role. Accordingly, I dissent.
The issue in this case is whether evidence impeaching the accuracy of a breath test is relevant to whether the breath test “disclosed [an unlawful] level of alcohol in the person’s blood.” ORS 813.410(5)(c). To resolve that issue, we *114must decide whether “disclosed” means “accurately disclosed” in that statute. The statutory scheme indicates that it does not.
ORS 813.100(3) provides that if a person submits to a breath test under the implied consent law, and the test “discloses * * * [an unlawful] level of alcohol in the person’s blood,” the person’s driving privileges are subject to suspension under ORS 813.410, and the police officer must immediately take custody of the person’s driver’s license and send MVD areport of the incident under ORS 813.120. (Emphasis supplied.) If MVD receives a report under ORS 813.120, it must propose to suspend the person’s driver’s license. ORS 813.410(2). The person may request a hearing, ORS 813.410(2), the scope of which includes whether the breath test “disclosed [an unlawful] level of alcohol in the person’s blood.” ORS 813.410(5)(c). (Emphasis supplied.)
The breath test “discloses [an unlawful] level of alcohol,” within the meaning of ORS 813.100(3), if it shows an unlawful level of alcohol, regardless of its accuracy. See State v. Mittelstadt, 82 Or App 366, 369, 728 P2d 93 (1986). Otherwise, the accuracy of the breath test would have to be determined before the officer could immediately take custody of the person’s driver’s license and send a report to MVD. “Disclosed” does not mean “accurately disclosed” in that provision.
The same language used in different parts of a statute is presumed to be used in the same sense throughout, absent an indication of contrary intent. See, e.g., Portland Assn. of Teachers v. School Dist. No. 1, 51 Or App 321, 326, 625 P2d 1336 (1981). ORS 813.100(3) incorporates ORS 813.410 by reference.
There is no indication that the legislature intended the term “disclose” to have a different meaning in ORS 813.410(5)(c) than it has in ORS 813.100(3). To the contrary, there is a strong indication that the legislature intended the same meaning. Had the legislature wanted to make the accuracy of the breath test relevant in the administrative suspension hearing, it easily could have used the settled *115language of the criminal driving under the influence of intoxicants (DUII) statute. ORS 813.010. Under that statute, evidence impeachingthe breath test is admissible. State v. Clark, 286 Or 33, 593 P2d 123 (1979). Significantly, the language of the DUII statute is not used in ORS 813.410(5)(c), which was enacted after Clark.
There being no contrary indication, we should apply the same construction to ORS 813.410(5)(c) as is applicable in ORS 813.100(3). The term “disclosed” in ORS 813.410(5)(c) does not mean “accurately disclosed.” The only evidence relevant to what the breath test disclosed is the test result itself.
The majority appears oblivious to the parallel usage of the critical statutory phrase, preferring instead to focus on Webster’s Dictionary. It also cites Hilton v. MVD, 308 Or 150, 775 P2d 1378 (1989), apparently because it considers that case to have presented a “similar issue.” 122 Or App at 112. In Hilton, the respondent sought to present evidence that he did not drive the car. The scope of the hearing included whether he refused or failed a breath test under the implied consent law. Former ORS 482.541(4)(c) (since amended and renumbered ORS 813.410(5)(c)). The respondent was subject to the implied consent law, and could refuse or fail a breath test under that law, only if he drove. Former ORS 487.805 (since amended and renumbered ORS 813.100). Therefore, the court held that whether the respondent was the driver of the car was within the literal scope of the hearing. 308 Or at 156.1 Any support the majority finds in Hilton for its position in this case is question-begging at best.
ORS 813.410(5)(g) and (h) provide the only challenges to the breath test within the scope of the hearing. They permit attacks by evidence that the person who administered *116the test was not qualified, or that the methods, procedures and equipment used did not comply with the requirements of ORS 813.160.
ORS 813.160 directs the Health Division to approve methods of performing chemical analyses of a person’s blood that are “satisfactory for determining alcoholic content.” OAR 257-30-035, adopted pursuant to that statute, allows breath testing equipment to be certified as accurate if the test result deviates no more than .01 percent high or .02 percent low of the expected result. That rule has been in effect since 1985, and was in effect in 1989 when the legislature established the limit of .04 percent for suspension of commercial driving privileges. ORS 813.160 also requires that the breath testing equipment be certified as accurate as defined by the rule at least once every 90 days. Respondent does not dispute that the breath testing equipment was certified as accurate as required by statute. Neither does he dispute that the equipment was operated by a qualified person in accordance with all applicable procedures.
The hearings officer properly excluded respondent’s extraneous challenge to the breath test. Substantial evidence supports MVD’s order upholding the suspension. I would reverse and remand with instructions to reinstate the suspension order.
Accordingly, I dissent.
Richardson, C. J., and Rossman and Deits, JJ., join in this dissent.In its review of Hilton, the majority sets forth former ORS 482.541(4)(b) (renumbered ORS 813.410(5)(b)), which made it an issue within the scope of the hearing whether the police officer had a reasonable ground to believe that the person was driving under the influence of intoxicants. The majority then explains:
“The Supreme Court [held] that the legislature intended the licensee to have an opportunity to show that the true facts were different from what the police officer reasonably believed.” 122 Or App at 112.
The majority obscures the statutory basis for the Supreme Court’s holding in Hilton. As previously noted, the Supreme Court rested its decision on former ORS 482.541(4)(c), not (b).