dissenting.
The critical problem with the majority’s reasoning is that it treats an administrative suspension for failing a breath test as being a “penalty for driving with blood alcohol content above the legal limit.” 93 Or App at 394. The majority acknowledges that, under the same statutes, a suspension for refusing
“to take the test is not a penalty for driving under the influence of intoxicants. It is applied to discourage refusals to abide by the implied consent to take the breath sample that follows from driving on public roadways. State v. Newton, 291 Or 788, 793, 636 P2d 393 (1981). It is part of the evidence gathering process when a person has lawfully been arrested for DUII.” 93 Or App at 393.
Nothing in the statutory scheme substantiates the distinction which the majority makes and, without that distinction, there can be no greater due process right to introduce evidence and obtain a finding about “actual driving” in connection with a failure of the test than in connection with a refusal to take it.
The terms of the statute, as the majority agrees, unequivocally make the officer’s reasonable grounds to believe that the arrested person had been driving under the influence of intoxicants, and not the accuracy of that belief, a criterion for upholding the validity of a suspension. The majority also acknowledges that, in Ward v. Motor Vehicles Division, 50 Or App 19, 621 P2d 674 (1981), and Leabo v. SER/Motor Vehicles Division, 46 Or App 55, 610 P2d 317, rev den 289 Or 337 (1980), we held that it was irrelevant in the administrative suspension process whether an arrestee who refused to take the test was in fact driving. The majority “assumes” — and I conclude — that due process does not require an opportunity to disprove or a finding about the fact of driving in cases where the ground for suspension is a refusal to take the test.
The majority nevertheless concludes that, if a licensee takes the test and fails, and if he asserts that he was not driving, due process requires MVD to consider evidence of whether he was actually driving and make a finding on that issue. The basis for the majority’s conclusion is its understanding that a suspension for failing the test is penal and that *398the fact of driving is a constitutional condition precedent to the imposition of that penalty.
I am unable to agree with that reasoning. Under former ORS 482.541(4), as it read at the time of petitioner’s hearing, refusal to take the test and failure of the test were simply alternative grounds for an administrative suspension. I do not share the majority’s view that actual driving is any more relevant under the statute or has any more constitutional significance in one context than in the other. I do not agree that the ability to adduce evidence or an affirmative finding about actual driving is necessary to avoid an “erroneous deprivation” if one has failed the test, but not if one has refused to take it, given that the statute attaches no significance to the fact of driving in either connection.
The fact of having a blood alcohol content above the intoxication level, like refusing to submit to a breath test, is a valid non-penal basis for an administrative suspension, whether or not the person was driving with that amount of alcohol in his system. There are numerous statutory provisions which make condition or status that does not depend on the act of driving a ground for the denial or suspension of operator’s licenses. Examples are ORS 807.060(5) (previously institutionalized and determined to be mentally ill or retarded); ORS 807.060(6) (subject to lapses of consciousness or control); ORS 807.060(7) (physical or mental disability preventing ability to control vehicle); ORS 809.410(20) (under specified circumstances, suspension upon release from mental institution); ORS 809.260 (minor convicted of or determined to have committed alcohol or drug offense). Most saliently, ORS 807.060(4) provides that a person is ineligible for an operator’s license if MVD
“determines [that the person] has a problem condition involving alcohol or controlled substances as described under ORS 813.040.”
Like those other statutory grounds for disqualification, a person’s having had a blood alcohol content above the level of intoxication, as revealed by a breath test taken pursuant to former ORS 482.541(4), is a status or condition. The legislature provided in other subsections of the statute that, in order for that status to give rise to a suspension, other facts also had to be shown, including a reasonable belief by the *399requesting officer that the person was driving while intoxicated. However, it was not constitutionally incumbent on the legislature to further require that the person have an opportunity to disprove the fact which the officer believed.
Pooler v. MVD, 306 Or 47, 755 P2d 701 (1988), is wholly consistent with my view and is at odds with the majority’s. The court concluded there that, for a person to be “under arrest” within the meaning of former ORS 482.541(4), the arrest must be a valid one, and its validity is an issue in the administrative hearing. A valid arrest, the court explained, “mean[s] an arrest supported by probable cause.” 306 Or at 50. Accordingly, for a person to be “under arrest” for purposes of the statute, it must be established that the arresting officer had probable cause to believe, inter alia, that the person was driving. However, it is not necessary that the hearings officer find that the person was driving in order to find that the arrest was valid. The majority nevertheless concludes that Pooler lends support to its thesis that, to suspend an arrested person’s license on the ground that he failed a breath test, the person must be allowed to produce evidence that he was not and the hearings officer must find that he was driving. In my opinion, the majority’s reading of Pooler is a nonsequitor: it posits that proof and a finding that the officer had probable cause to believe that the arrested person was driving satisfies the “under arrest” requirement of the statute, but that proof and a finding about whether the person was actually driving can be necessary in connection with the statutory requirement that the officer had reasonable grounds to believe that the person was driving. See former ORS 482.541(4)(a) and (b).
Throughout its discussion, the majority appears to treat the administrative suspension statutes as defining an offense, identical in its elements to DUII. The statute is not susceptible to that understanding. It clearly provides that the suspension is for refusing or failing the test, not for committing the offense. The fact that the sanctions for the offense are penal in nature does not make suspension a penalty. For the reasons I have stated, the legislature may and did make failing the test, without more, the ground for a suspension, just as it may and has made refusal of the test the basis for an administrative suspension. I do not agree with the majority that more protections are constitutionally required in connection with one kind of suspension than the other, or that the proof *400specified by the statute falls short of due process requirements in connection with suspensions based on either ground. I therefore dissent.1
Warren, Van Hoomissen and Deits, JJ., join in this dissent.
Bell v. Burson, 402 US 535, 91 S Ct 1586, 29 L Ed 2d 90 (1971), is not contrary to my conclusion. The objective of the Georgia statute involved in that case, as the United States Supreme Court understood it, was to assure that a driver could respond to a judgment when there was a “reasonable possibility of [one] being rendered against him.” 402 US at 542. Accordingly, some likelihood of liability as well as the failure to demonstrate financial responsibility had to be established to justify an administrative suspension under the statute even though, facially, it required only a showing that a driver who had been involved in an accident had not demonstrated financial responsibility. The Supreme Court’s concern with “form and substance” may have been valid in Bell, because of the integral connection between the ability to satisfy a judgment and the likelihood that there will be a judgment to satisfy. However, there is no comparable form and substance problem here. The legislature has specified that failing a breath test is a ground for the suspension of a license, if the other prerequisites to suspension which the statute establishes are also shown to exist. The statute makes it very clear — and we have held in construing its predecessor — that whether the arrested person was in fact driving is not among those prerequisites. Actual driving is not part of the form or the substance of the statute; it is something which the statute makes totally irrelevant.