Louis Anest STRATIKOS, Respondent,
v.
State of Oregon, DEPARTMENT OF MOTOR VEHICLES, Driver's License Division, Appellant.
Court of Appeals of Oregon, Department 1.
Argued and Submitted November 20, 1970. Decided December 3, 1970.*238 Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Nicholas D. Zafiratos, Astoria, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and LANGTRY and BRANCHFIELD, JJ.
LANGTRY, Judge.
This is an appeal by the Department of Motor Vehicles from judgment of the circuit court to which the case was tried without a jury. It was held that the plaintiff had not refused to take a breathalyzer test as required by the Act entitled "Implied Consent Law." ORS 482.540 through 482.580 and 483.634 through 483.646.
The Oregon Supreme Court in Heer v. Dept. of Motor Vehicles, 252 Or. 455, 450 P.2d 533 (1969), and Burbage v. Dept. of Motor Vehicles, 252 Or. 486, 450 P.2d 775 (1969), upheld the statutes. Burbage held that the appeal to the circuit court from the Department's administrative determination of loss of driver's license, provided by ORS 482.560, is a civil action.
The evidence was that after the plaintiff's arrest the arresting officer, having reasonable grounds to believe plaintiff was driving the vehicle and was under the influence of alcohol, requested him to submit to a breathalyzer test. The plaintiff answered, "I'll not take the test without my attorney present." The Department administratively found this was a refusal and imposed the statutory sanction of loss of driver's license. As previously noted, on appeal to the circuit court it was held that what plaintiff said did not amount to refusal to take the test.
Plaintiff asserts, "The key question is whether or not the taking of a breath test is at such a critical stage of a criminal proceeding so as to require the presence of counsel as guaranteed by Wade." (United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)). As noted above, Burbage holds that this is a civil proceeding. There is no threat to plaintiff's personal freedom. The only sanction is loss of driver's license for 90 days. ORS 483.634(3), inter alia, expressly provides that evidence of a refusal to take the test shall not be admissible in any criminal action.
Other jurisdictions in which the same question has been tried have rejected plaintiff's contention. In State v. Pandoli, 109 N.J. Super. 1, 262 A.2d 41 (1970), the petitioner contended that there was no flat refusal to take the test where he refused to take the test until he had an opportunity to call his attorney. As in the case at bar, the upshot of the demand was that he did not take the test. The court said:
"* * * As a matter of law, defendant had no right to have the advice of an attorney before determining whether he would accede to the test, insofar as the sanction of revocation for refusal is concerned. See State v. Kenderski, 99 N.J. Super. 224, 229-230, 239 A.2d 249 (App.Div. 1968); Ent v. State, Department of Motor Vehicles, 265 Cal. App. 2d 936, 71 Cal. Rptr. 726 (Ct.App. 1968).
"In any event, the request for consultation with counsel necessarily involved a delay in administration of the test. Having in mind the remedial purpose of the statute, and the rapidity with which *239 the passage of time and the physiological processes tend to eliminate evidence of ingested alcohol in the system, it is sensible to construe the statute to mean that anything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the test constitutes a refusal to do so. * * * The occasion is not one for debate, maneuver or negotiation, but rather for a simple `yes' or `no' to the officer's request." 109 N.J. Super. at 4, 262 A.2d at 42.
A line of California cases has held that a qualified refusal to take the test, the qualification being that attorney or physician be present, is a refusal calling for loss of driver's license, and this is so even though the equivocation causes only 30 to 40 minutes loss of time in administering the test. Ent v. Department of Motor Vehicles, 265 Cal. App. 2d 936, 71 Cal. Rptr. 726 (1968) (cited in Pandoli, supra); People v. Sudduth, 65 Cal. 2d 543, 55 Cal. Rptr. 393, 421 P.2d 401, cert. denied 389 U.S. 850, 88 S. Ct. 43, 19 L. Ed. 2d 119 (1967); Finley v. Orr, 262 Cal. App. 2d 656, 69 Cal. Rptr. 137 (1968); Fallis v. Department of Motor Vehicles, 264 Cal. App. 2d 373, 70 Cal. Rptr. 595 (1968); Zidell v. Bright, 264 Cal. App. 2d 867, 71 Cal. Rptr. 111 (1968).
To the same effect see People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351, 353 (1968), and the determination of an allied question in Collins v. Secretary of State, 19 Mich. App. 498, 507, 172 N.W.2d 879 (1969). We have been cited, and we have found, no decision to the contrary.
Ent, supra, indicates that if the case were criminal in nature, the holding of Wade, supra, would not require the presence of counsel on the accused's demand therefor. See also, Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). However, we find it unnecessary to consider the question.
Reversed, with instructions to reinstate the order of the Department of Motor Vehicles suspending plaintiff's driver's license.