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FITZPATRICK v. OREGON DEPT. OF TRANSP.

08CV0343; A140092.

235 P.3d 701 (2010)

236 Or. App. 113

In the Matter of the Suspension of the Driving Privileges of Colleen K. FITZPATRICK, Petitioner-Respondent, v. OREGON DEPARTMENT OF TRANSPORTATION, Driver and Motor Vehicle Services Division (DMV), Respondent-Appellant.

Court of Appeals of Oregon.

Decided June 23, 2010.

Attorney(s) appearing for the Case

Michael A. Casper, Assistant Attorney General, argued the cause for appellant. With him on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.

Nick C. Nylander, North Bend, argued the cause and filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

DUNCAN, J.

The Oregon Department of Transportation, Driver and Motor Vehicle Services Division (DMV), appeals a circuit court judgment setting aside a DMV order suspending petitioner's driving privileges for refusing to take a breath test. DMV argues that the court erred in holding that petitioner did not refuse to take the breath test. We agree and reverse and remand.

Officer Merritt, of the North Bend Police Department, arrested petitioner for driving under...

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