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JONES v. MVD

85-CV-308; CA A38768.

730 P.2d 1273 (1986)

83 Or.App. 209

In the matter of the Suspension of the Driving Privileges of Robert Byron JONES, Respondent, v. MOTOR VEHICLES DIVISION, Appellant.

Court of Appeals of Oregon.

Decided December 31, 1986.

Attorney(s) appearing for the Case

Douglas F. Zier, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

R. Daniel Simcoe, Grants Pass, argued the cause for respondent. With him on the brief was Brown, Hughes, Bird & Lane, Grants Pass.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

The sole issue presented by this case is whether the unavailability of an Intoxilyzer at the time when an individual refuses to submit to a breath test prevents his refusal to submit from constituting a "refusal" under former ORS 487.805 (now ORS 813.100).1 We conclude that it does not and reverse.

Former ORS 487.805 provides, in part:

"(1) Any person who operates a motor vehicle upon premises...

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