dissenting.
The majority agrees that petitioner had "adequate notice” of the proposed suspension and suffered no prejudice when the officer checked the breath test failure box rather than the refusal box. Nevertheless, the majority refuses to suspend petitioner’s license. Because I cannot agree to such a monumental triumph of form over substance, I dissent.
As pertinent here, a suspension for refusing to take or failing a breath test is governed by two statutes: ORS *451813.410 and ORS 813.120. Under ORS 813.410, the Department of Transportation (department) shall suspend an operator’s driving privileges upon the receipt of a police officer’s report that is in “substantial compliance” with ORS 813.120. A police officer’s report under ORS 813.120 “shall disclose substantially all” of the information listed, including whether the operator refused to submit to a breath test or submitted to and failed the test.
“Substantial compliance” has been defined as “compliance in respect to the essential matters necessary to assure every reasonable objective of the statutes.” Rogers v. Roberts, 300 Or 688, 691, 717 P2d 620 (1986). The majority does not dispute that the legislature intended this meaning when it used the term in ORS 183.410. Yet, inexplicably, the majority holds that the requirement in ORS 813.120 to “disclose substantially all” information compels strict adherence. Such an interpretation is inconsistent with the commonly understood meaning of substantial compliance, as defined above, and renders that term meaningless in ORS 813.410.
Although the length of suspension can be greater for refusing than for failing the breath test, petitioner’s only ground for requesting a hearing was that he had refused, rather than failed, the test, as indicated by the box checked by the officer. The request for the hearing and the hearing itself amply demonstrated that petitioner knew that he had refused and had no justification for the refusal. Notice and the opportunity for petitioner to be heard about his failure to comply with the implied consent law were achieved. In the context of this case, those are the essential matters to which the statutory scheme speaks. Petitioner cannot demonstrate that he suffered any prejudice as a result of the officer’s mistake. Accordingly, I would not allow petitioner to avoid the consequences of his refusal. Respectfully, I dissent.