362
Argued and submitted March 3; decision of Court of Appeals and judgment
of circuit court reversed, order of Driver and Motor Vehicle Services Division
affirmed October 20, 2022
In the Matter of
the Suspension of the Driving Privileges of
Michael Thomas Murdoch.
Michael Thomas MURDOCH,
Respondent on Review,
v.
DRIVER AND MOTOR VEHICLE
SERVICES DIVISION (DMV),
a Division of the Department of Transportation,
Petitioner on Review.
(CC 17CV49033) (CA A169189) (SC S068728)
519 P3d 115
A state trooper arrested petitioner for driving under the influence of intoxicants. The trooper informed petitioner of the rights and consequences related
to failing or refusing to submit to a chemical breath test. ORS 813.130 (2017).
Additionally, the trooper informed petitioner that she would seek a warrant if
petitioner refused to submit to the test. Petitioner refused, and Driver and Motor
Vehicle Services Division (DMV) suspended his driving privileges pursuant to
ORS 813.410 (2017). Petitioner challenged DMV’s suspension, arguing that the
arresting trooper had modified the authorized procedure by informing him of
a consequence—that she would seek a warrant—that was not included on the
DMV-approved implied-consent form. An administrative law judge (ALJ) upheld
DMV’s suspension. The circuit court reviewing DMV’s order vacated the suspension, and the Court of Appeals affirmed. Held: The ALJ’s final order suspending
petitioner’s driving privileges must be affirmed because petitioner was informed
of the rights and consequences related to breath-test refusals “as described under
ORS 813.130.” ORS 813.410(6)(e) (2017).
The decision of the Court of Appeals and the judgment of the circuit court are
reversed. The order of the Driver and Motor Vehicle Services Division is affirmed.
En Banc
On review from the Court of Appeals.*
Colm Moore, Assistant Attorney General, Salem, argued
the cause and filed the briefs for petitioner on review. Also
______________
* Appeal from Columbia County Circuit Court, Cathleen B. Callahan, Judge.
311 Or App 386,
492 P3d 89 (2021).
Cite as
370 Or 362 (2022) 363
on the briefs were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
John Henry Hingson, III, John Henry Hingson, III, P.C.,
Oregon City, argued the cause and filed the brief for respondent on review.
DeHOOG, J.
The decision of the Court of Appeals and the judgment of
the circuit court are reversed. The order of the Driver and
Motor Vehicle Services Division is affirmed.
364 Murdoch v. DMV
DeHOOG, J.
Oregon law provides law enforcement officers investigating the offense of driving under the influence of intoxicants (DUII), ORS 813.010, with various tools to aid in that
investigation. Among them are breath testing to determine
the blood-alcohol content (BAC) of a person suspected of DUII
and, under appropriate circumstances, search warrants
authorizing the drawing and testing of the person’s blood.
To encourage such a person to submit to breath testing, the
legislature, as part of Oregon’s “implied consent” law, has
directed law enforcement to inform a person arrested for
DUII of certain specific adverse consequences of a refusal,
in addition to various other rights and consequences associated with the person’s decision regarding the breath test.
One consequence of refusing the test is an administrative
suspension of the person’s driving privileges without regard
to the person’s actual BAC or the outcome of any criminal
DUII proceedings.
At issue in this case is whether the suspension of
petitioner’s driver’s license for refusing a breath test was
valid when, in addition to providing petitioner with the
statutorily required information regarding rights and consequences, the arresting officer also told petitioner that she
would seek a search warrant for a blood draw if petitioner
refused the test. The Department of Transportation, Driver
and Motor Vehicle Services Division (DMV) suspended
petitioner’s driving privileges, but, after petitioner sought
judicial review in circuit court, the circuit court set aside
that suspension, a decision that the Court of Appeals later
affirmed. Murdoch v. DMV, 311 Or App 386, 388-89,
492
P3d 89 (2021). For the reasons that follow, we conclude that
DMV properly suspended petitioner’s driving privileges,
and we therefore reverse the Court of Appeals’ decision and
the circuit court’s judgment.
I. BACKGROUND
A. Facts
The events leading to petitioner’s arrest for DUII
and his subsequent refusal to take a breath test are uncontested on review. As the Court of Appeals accurately
described:
Cite as 370 Or 362 (2022) 365
“A witness initially reported petitioner’s vehicle traveling at erratic speeds and failing to maintain his driving
lane. After receiving that report, a state trooper saw petitioner’s vehicle, which matched the witness’[s] description,
drifting across traffic lanes. The trooper initiated a traffic
stop based on the observed traffic violations and for suspicion of driving under the influence of intoxicants (DUII).
Once stopped, the trooper began to explain to the driver
the reason for the stop, but the driver, who was later identified as petitioner, interjected, telling the trooper, ‘I’m hammered,’ as he handed his keys to the trooper. Petitioner also
told the trooper that he drank three whiskeys that night,
in addition to other things. The trooper observed that petitioner had bloodshot, watery eyes, with dilated pupils. She
also detected a strong odor of alcoholic beverage coming
from petitioner’s breath and observed that petitioner’s
speech was slurred. The trooper concluded that, more likely
than not, petitioner had committed the offense of DUII.
“Although petitioner initially agreed to perform standardized field sobriety tests (SFSTs), when the trooper
asked petitioner to stand in the instructional position, petitioner said, ‘I’m going to waive those,’ which the trooper
understood to mean that petitioner refused to perform the
SFSTs. The trooper then read to petitioner, from a prepared
card [describing] the consequences of refusing to take the
SFSTs, before asking petitioner a second time whether he
would perform the SFSTs. Petitioner refused a second time.
The trooper then arrested petitioner for DUII and transported him to the Columbia County Jail.”
Murdoch, 311 Or App at 389.
At the jail, Senior Trooper May of the Oregon State
Police, who had arrested petitioner, advised him of his
Miranda rights, which petitioner indicated he understood.
May followed that by asking petitioner, “Are you going to
take the breathalyzer?” Id. at 390. May then said,
“No?[1] Okay. I’m going to read [this] to you, and I will go
straight on to write a search warrant then. That’s what
we do in this county. We write search warrants if you are
going to refuse.”
1
Petitioner does not appear to have responded audibly to May’s inquiry, and
the record does not reflect whether he shook his head or otherwise indicated a
negative response at that time.
366 Murdoch v. DMV
Id. May then informed petitioner of various rights and consequences related to breath testing by reading them to
him from the Implied Consent Combined Report (implied-consent form).2 After reading petitioner those rights and
consequences, May asked him to take a breath test, but
petitioner declined. Following that refusal, May informed
him that his license would be suspended and gave him a
copy of the implied-consent form. Thereafter, DMV proposed to suspend petitioner’s driving privileges for one
year.
B. Procedural History
Petitioner challenged DMV’s proposed suspension
of his driving privileges before an administrative law judge
(ALJ). He raised two alternative arguments: (1) May had
been required to inform him of the rights and consequences
before—and not after—May’s initial request that he submit
to a breath test; and (2) May’s statement that she would seek
a warrant if petitioner refused the test—a consequence that
is not included in DMV’s approved implied-consent form—
modified the authorized procedure and therefore failed to
comply with ORS 813.130 (2017).3
2
The Implied Consent Combined Report, or ICCR, is a DMV-approved form
listing, among other things, various rights and consequences related to breath
testing as detailed in ORS 813.130, which is discussed below.
3
Petitioner’s driving privileges were suspended under the implied-consent
law in effect at the time of his DUII arrest in 2017. Several of those statutes
have been amended. See e.g., ORS 813.100 (2017), amended by Or Laws 2019,
ch 475, § 1; ORS 813.130 (2017), amended by Or Laws 2019, ch 475, § 2; and ORS
813.410 (2017), amended by Or Laws 2019, ch 312, § 22; Or Laws 2021, ch 302,
§ 1; Or Laws 2021, ch 630, § 118. The amendments to ORS 813.410 resulted in the
renumbering of subsections of that statute. At least one of those amendments has
not yet taken effect and we express no view as to whether the changes made by
any of the aforementioned amendments would lead to a different outcome under
the facts of this case.
As in effect in 2017, ORS 813.130 provided, in part:
“This section establishes the requirements for information about rights
and consequences for purposes of ORS 813.100 and 813.410. The following
apply to the information about rights and consequences:
“(1) The information about rights and consequences shall be substantially in the form prepared by the Department of Transportation. The department may establish any form it determines appropriate and convenient.
“(2) The information about rights and consequences shall be substantially as follows: [listing various rights and consequences related to failing or
refusing to take a breath test].”
Cite as 370 Or 362 (2022) 367
May testified at the administrative hearing, and
DMV and petitioner both introduced exhibits. In the resulting final order, the ALJ focused on petitioner’s second argument, considering whether May’s statement that she would
“write a search warrant” had exceeded her authority, rendering the ensuing license suspension invalid. Citing Hays
v. DMV, 228 Or App 689,
209 P3d 405 (Hays I), modified
on recons,
230 Or App 559,
216 P3d 902 (2009) (Hays II),
the ALJ concluded that May had not exceeded her authority
because she had not threatened an unlawful consequence
of refusing to take the blood test.4 See Hays I, 228 Or App
at 699 (where officer had made unlawful threat to obtain
warrant to test driver’s blood, threat exceeded officer’s lawful authority, and “any consent thereby induced [was] not
lawfully obtained.”); Hays II,
230 Or App at 561 (clarifying
that, because the threat of unlawful consequences meant
that the driver’s license suspension had been “based on a
legally unauthorized procedure,” suspension was “invalid as
a matter of law”). Thus, because May had lawful authority
to seek a warrant under the circumstances, her statement
did not invalidate the suspension—that is, it did not “exceed
her authority expressed or implied under ORS 813.130[.]”
The ALJ therefore issued a final order affirming the suspension of petitioner’s license.
Petitioner sought judicial review of the final order in
circuit court. ORS 813.450. Both parties’ briefing focused on
the ALJ’s conclusion that May’s statements had not exceeded
her lawful authority, with both specifically disputing the
ALJ’s interpretation of Hays I and Hays II. Ultimately, however, relying on petitioner’s alternative argument that the
timing of May’s advice to him had failed to comply with
ORS 813.100, which requires that a person be informed
“[b]efore the test is administered,” the circuit court reversed
and remanded the ALJ’s final order for further proceedings.
The court subsequently entered a general judgment vacating petitioner’s license suspension, which DMV appealed.
4
Although May referred to “writ[ing] a search warrant,” as opposed to writing out an affidavit in support of a judicial search warrant, the parties appear
to regard May as having spoken in shorthand. Petitioner has never contended
that May threatened to take some action that she could not lawfully take or,
specifically, that she would not have been permitted to seek a search warrant
authorizing her to have petitioner’s blood drawn and tested.
368 Murdoch v. DMV
As an initial matter, the Court of Appeals rejected
the circuit court’s rationale that the timing of May’s advice to
petitioner had rendered the license suspension invalid. The
court then turned to petitioner’s second argument, regarding the effect of May’s statement to petitioner that she would
seek a warrant if he refused to take a breath test. The court
agreed with petitioner’s interpretation of Hays I and Hays II,
concluding that those decisions had not turned on the
lawfulness—or unlawfulness—of the officer’s statement
that he would get a warrant. In the court’s view, the operative inquiry was whether the statement about a warrant,
lawful or not, was part of the authorized administrative
procedure. The court concluded that May’s statement about
seeking a warrant had modified the advice of rights and consequences contemplated by the statutory scheme and was
therefore a “legally unauthorized procedure.” Because, the
court reasoned, May had followed an invalid procedure, the
administrative sanction of suspension based on that procedure was likewise invalid. Murdoch, 311 Or App at 395-96.
DMV petitioned for review, which we allowed.
II. ANALYSIS
As just noted, the Court of Appeals characterized the “operative inquiry [as] whether [May’s] statement
about a warrant—lawful or not—was part of the authorized
administrative procedure” for suspending a person’s driving privileges under ORS 813.410. Murdoch, 311 Or App at
395. We, however, view the relevant inquiry somewhat differently than did the Court of Appeals and, for the following
reasons, ultimately agree with the ALJ’s conclusion that the
suspension of petitioner’s driving privileges was valid.
A. Suspension of Driving Privileges Under the Implied-Consent Law
In resolving whether petitioner’s driver’s license was
properly suspended, we view the operative inquiry much the
same as DMV framed it in the “question presented” section
of its petition for review:
“When a law enforcement officer arrests someone for
driving under the influence of intoxicants and reads the
Cite as 370 Or 362 (2022) 369
person the [implied-consent form], is the entire implied
consent administrative process invalid if the officer also
tells the person of the additional consequences of refusing a breath test, such as applying for a search warrant, if
those additional consequences are truthful but go beyond
the listed consequences of the [implied-consent form]?”
In describing its own inquiry as it did, the Court of Appeals
appears to have assumed that, by giving petitioner advice
that the legislature did not require DUII suspects to be
given under the circumstances, May somehow impermissibly “modifi[ed]” the “authorized administrative procedure,”
Murdoch, 311 Or App at 395-96. Given that premise, the
court concluded that the modified procedure was “legally
unauthorized” and, therefore, “invalid,”
id. at 396, rendering the suspension of petitioner’s driving privileges itself
invalid,
id.
We, on the other hand, find it less obvious whether
May impermissibly “modifi[ed]” the legally authorized procedure when she told petitioner that she would pursue a
search warrant if he refused to submit to a breath test.
That inquiry requires a closer examination of the statutory
provisions.
1. Suspension hearings under ORS 813.410
As noted, DMV suspended petitioner’s driving privileges following an administrative hearing held under ORS
813.410 (2017). That statute provides, in part, that, if DMV
“receives from a police officer a report that is in substantial compliance with ORS 813.120,”5 DMV must “suspend
the driving privileges of the person [arrested for DUII] …
on the 30th day after the date of arrest … unless, at a
5
As relevant here, ORS 813.120(1) requires the officer’s report to indicate,
among other things, whether (1) “the person, at the time the person was requested
to submit to a [breath] test, was under arrest for” DUII; (2) “the police officer had
reasonable grounds to believe, at the time the request was made, that the person
arrested had been driving under the influence of intoxicants”; (3) “the person
refused to submit to a test”; and (4) “the person was informed of consequences and
rights as described under ORS 813.130.” (Emphases added.) There is no dispute
that May’s report included the required information; that petitioner was in fact
under arrest for DUII at the time he was asked to take a breath test; that there
were “reasonable grounds to believe” that he had been driving under the influence; and that he refused to submit to a breath test.
370 Murdoch v. DMV
hearing described under” ORS 813.410, DMV “determines
that the suspension would not be valid as described in [that]
section.” ORS 813.410(1) (2017).
The suspension-hearing requirements of ORS 813.410
(2017) further set out the substantive issues to be addressed
at the hearing and require that its provision listing those
issues be “narrowly construed so as to effect the legislative purpose of limiting the scope of hearings under this
section.” ORS 813.410(6) (2017). That statute also provides
that the scope of a hearing under ORS 813.410 “shall be
limited to whether the suspension is valid as described in
this subsection.” ORS 813.410(6) (2017). Finally, it states
that a suspension “is valid if all of the following requirements have been met[,]” which include that “[t]he person
[was] informed under ORS 813.100 of rights and consequences as described under ORS 813.130.” ORS 813.410(6)(e)
(2017).
2. The implied-consent framework: ORS 813.100, ORS
813.130, and ORS 813.410
The parties’ dispute effectively centers on ORS
813.410(6)(e) (2017) and its requirement that, for a suspension to be valid, the person asked to take a breath test must
have been “informed under ORS 813.100 of rights and consequences as described under ORS 813.130.” ORS 813.410(6)(e)
(2017) (emphasis added). On review in this court, there is no
dispute that May “informed [petitioner] under ORS 813.100
of rights and consequences,” at least in a general sense.6 Nor
is there any dispute that May read the implied-consent form
to petitioner, that DMV had approved the implied-consent
form, or that the implied-consent form that May read to
petitioner itself complied with ORS 813.130 (2017). See ORS
813.130(2) (2017) (stating that the “information about rights
and consequences shall be substantially as follows” and
listing various details related to DUII and to breath-test
failure or refusal); ORS 813.130(1) (2017) (assigning DMV
6
In his response to DMV’s brief on the merits, petitioner does not reprise his
argument—which, as previously noted, the Court of Appeals rejected—that the
timing of May’s advice to him as to the rights and consequences set forth in ORS
813.130 rendered that advice and the ensuing suspension of his driver’s license
invalid.
Cite as 370 Or 362 (2022) 371
responsibility for establishing the form in which information
about rights and consequences is to be provided; permitting
DMV to “establish any form it determines appropriate and
convenient”).
What is disputed is whether May failed to inform
petitioner of the rights and consequences of failing or refusing a breath test “as described” under ORS 813.130 (2017)
when, in addition to reading the implied-consent form, May
also told petitioner that she would seek a search warrant
if he refused to submit to a breath test. DMV asserts that,
by reading petitioner the DMV-approved implied-consent
form—which itself undisputedly tracked ORS 813.130
(2017)—May also satisfied the requirements of ORS 813.130
(2017) itself; that is, she advised him of the rights and consequences that the statute describes. Petitioner, however, disagrees. Echoing the Court of Appeals’ conclusion, he contends
that, when May told him that she would pursue a search
warrant if he refused to submit to a breath test, she had
“modifi[ed]” the advice of rights and consequences that ORS
813.130 (2017) authorized. That, petitioner reasons, means
that May did not advise him of the rights and consequences
of a refusal “as described under ORS 813.130.” Rather, she
provided him with information that ORS 813.130 (2017) did
not authorize and so unilaterally modified the statutorily
authorized procedure. Petitioner therefore concludes that
DMV’s suspension of his driving privileges was not “valid”
under ORS 813.410 (2017).
Taking a closer look at ORS 813.130 (2017), that provision gave substance to the requirement under ORS 813.410
(2017) that, for a license suspension to be valid, the person
must have “been informed under ORS 813.100 of rights
and consequences as described under ORS 813.130.” ORS
813.410(6)(e) (2017). Specifically, ORS 813.130 (2017) listed
the rights and consequences that officers were required to
share with persons arrested for DUII. That section provided, in part:
“This section establishes the requirements for information about rights and consequences for purposes of ORS
813.100 and 813.410. The following apply to the information about rights and consequences:
372 Murdoch v. DMV
“(1) The information about rights and consequences
shall be substantially in the form prepared by the
Department of Transportation. The department may establish any form it determines appropriate and convenient.
“(2) The information about rights and consequences
shall be substantially as follows: [listing various rights and
consequences related to failing or refusing to take a breath
test].” 7
Ultimately, as noted above, the question whether a
person who failed or refused to take a breath test “had been
informed … of rights and consequences as described under
ORS 813.130” is a determination to be made under ORS
813.410—if the person was not so informed, any resulting
license suspension is presumably not “valid.” ORS 813.410(6)(e)
(2017). We therefore turn to that question.
B. Did the arresting officer inform petitioner of the rights
and consequences “as described under ORS 813.130”?
In light of that applicable framework, the outcome
of this case reduces to the following inquiry: What did the
legislature mean when it required in ORS 813.410(6)(e)
(2017) that, for a suspension of driving privileges based
on a breath-test refusal to be “valid,” the person asked to
take the test must have been informed of rights and consequences “as described under ORS 813.130”? We address
that question by applying our familiar approach to statutory interpretation, examining the relevant text in context,
together with any helpful legislative history. State v. Gaines,
346 Or 160, 171-72,
206 P3d 1042 (2009). In conducting that
analysis, however, we pay close heed to the legislature’s
express mandate—and important statutory context—that
ORS 813.410(6) (2017) be “narrowly construed so as to effect
the legislative purpose of limiting the scope of hearings
under [that] section.”
We begin by observing that, because May read petitioner the implied-consent form, which itself undisputedly
7
For purposes of the present discussion, the most noteworthy change between
ORS 813.130 (2017) and the current text of ORS 813.130 is probably that, under
the earlier statute, arresting officers were required to advise all persons arrested
for DUII of the rights and consequences related to breath test refusals; under the
current statute, only those who initially refuse the test must be given that advice.
Cite as 370 Or 362 (2022) 373
contained the same “rights and consequences” as those
listed under ORS 813.130 (2017), a comparison of the two
is not helpful in resolving the parties’ dispute. Rather, we
must determine whether, by advising petitioner of an additional consequence—one not listed in the statute or implied-consent form—May failed to inform him “as described”
under the statute. ORS 813.410(6)(e) (2017).
The disputed text itself—the phrase “as described
under”—provides little indication as to its intended meaning.
Despite its immediate context, including its cross-reference
to ORS 813.130 (2017) (which in turn lists various specific
rights and consequences that must be shared with a person
arrested for DUII), the phrase “as described” is somewhat
imprecise. As a matter of common usage, the meaning of
“describe” most relevant here seems to be “to make clear by
expounding[,] esp[ecially] in a minute way.” Webster’s Third
New Int’l Dictionary 610 (unabridged ed 2002). Because
ORS 813.130 (2017) sets out a detailed list of rights and
consequences—i.e., it “expound[s]” those rights and consequences “in a minute way”—the legislature may well have
simply sought to make clear what rights and consequences
arresting officers were required to share with DUII suspects, without necessarily prohibiting officers from sharing additional, legally correct information. But that understanding of the legislature’s intent is not the only plausible
meaning of the disputed text.
However, as statutory context, ORS 813.130 (2017)
provides additional guidance. Again, at the time, ORS
813.130 provided, in part:
“This section establishes the requirements for information about rights and consequences for purposes of ORS
813.100 and 813.410. The following apply to the information about rights and consequences:
“(1) The information about rights and consequences
shall be substantially in the form[8] prepared by the
8
A review of the legislative history discloses that the legislature’s reference
to a “form” contemplates an actual document—here the DMV-approved implied-consent form—containing the rights and consequences listed in ORS 813.130, as
opposed to a style, format, or medium of transmitting the required information.
See e.g., Tape Recording, Senate Committee on Judiciary, Subcommittee 1, SB 203,
Mar 28, 1985, Tape 70, Side B (testimony of Tony De Lorenzo, stating that DMV
374 Murdoch v. DMV
Department of Transportation. The department may establish any form it determines appropriate and convenient.
“(2) The information about rights and consequences
shall be substantially as follows: [listing various rights and
consequences related to failing or refusing to take a breath
test9].”
(Emphasis added.) Although ORS 813.130 (2017) did not
expressly state what was to be done with the listed information, the cross-referenced statutes—ORS 813.100 (2017) and
ORS 813.410 (2017)—made it abundantly clear that lawenforcement officers were required to give that information
to persons who were arrested for DUII and asked to take
the test. See ORS 813.100(1) (2017) (“person requested to
take the test shall be informed of consequences and rights
as described under ORS 813.130”); ORS 813.410(6)(e) (2017)
(person must have received information in ORS 813.130 for
suspension to be valid). Moreover, then, as now, the wording
of ORS 813.130 was mandatory—it “establishe[d] the requirements for [the] information” to be provided to such a person.
(Emphasis added.) Thus, there can be no doubt—nor is there
any dispute here—that an arresting officer must provide all
the listed information to a person arrested for DUII and
asked to take a breath test. However, again, the fact that an
officer is required to provide certain information does not
inform us as to whether the legislature intended to invalidate suspensions whenever officers voluntarily told persons
arrested for DUII about additional, lawful consequences,
had a form and was asking legislature to put it in the statute). Thus, we understand this subsection to largely echo subsection (2), which lists the specific rights
and consequences to be shared with persons arrested on suspicion of DUII.
9
The specified information regarding rights and consequences included
things such as (1) DUII is a crime punishable by criminal penalties if a test
discloses an unlawful BAC; (2) if a person refuses or fails a test, evidence of
the refusal or failure is admissible against the person; (3) what constitutes failure of the breath test for purposes of both the crime of DUII and the implied-consent law; (4) failing or refusing a test will result in the suspension of the person’s driving privileges; and (5) the suspension will be substantially longer for a
refusal than a failure. ORS 813.130(2)(a) - (f) (2017). Similarly, such a person was
required to be informed about rights the person had and certain procedural rules
governing those rights. See ORS 813.130(2)(g) - (L) (2017) (requiring that person
be informed of the right to obtain an additional blood-alcohol test at the person’s
expense; the person’s hearing rights and the requirement of a written request
for hearing; various timelines related to temporary driving permits, hearings
requests, and hearings; and potential qualification for a hardship permit).
Cite as 370 Or 362 (2022) 375
simply because the additional information was not statutorily required.
As to that question, we find further guidance in the
repeated use of the word “substantially” in ORS 813.130
(2017). See ORS 813.130(2) (2017) (requiring that the information provided be “substantially” as set forth in that subsection; ORS 813.130(1) (2017) (requiring that officer give
advice “substantially” as set forth in DMV’s form). Given
those mandates, it should go without saying that an officer’s advice to a DUII arrestee must accurately convey the
specified information. See Webster’s at 2280 (defining “substantially,” in part, as “in a substantial manner”); id. (defining “substantial,” in part, as “being that specified to a large
degree or in the main,” or “of or relating to the main part
of something”). Indeed, by using the word “substantially,”
the legislature likely meant at least two things. The first is
that, although neither an officer’s advice nor the implied-consent form was required to precisely mirror the language
of ORS 813.130(2) (2017), a failure to convey “the main part”
of the listed rights and consequences “to a large degree”
would render a license suspension invalid. And the second is
that, if, in addition to advising a person of the listed rights
and consequences, an officer were to tell the person something that changed the substance of those rights and consequences, that too would invalidate the suspension of the
person’s driving privileges. Under those circumstances, the
officer would have failed to convey “the main part” of the
required information, because the advice that the officer
had given would have altered the meaning of the specified
information.
Here, petitioner has not identified any way in which
May’s statement that she would seek a warrant if he refused
to take a breath test altered the substance of the advice of
rights and consequences that she gave petitioner. That is,
petitioner does not contend that, by making that statement,
May somehow conveyed a different message about DUII’s
status as a crime, what constituted a breath-test failure, the
consequences of failing or refusing a breath test, petitioner’s
rights with regard to a temporary license and an administrative hearing, or any of the other rights or consequences
detailed in ORS 813.130 (2017). In the absence of a developed
376 Murdoch v. DMV
argument to that effect, we see little reason to conclude that
May’s explanation that she would pursue a search warrant
if petitioner refused to take a breath test meant that she
failed to advise him, within the meaning of ORS 813.410(6)
(2017), of the rights and consequences related to that decision “as described in ORS 813.130.”
Rather than explain how May altered the substance
of the rights and consequences listed under ORS 813.130(2)
(2017), petitioner emphasizes a different subsection of that
statute, one relating to DMV’s authority to supplement the
information dictated by subsection (2). Petitioner points to
subsection (4), which at the time stated, “Nothing in this
section prohibits [DMV] from providing additional information concerning rights and consequences that [DMV] considers convenient or appropriate.” ORS 813.130(4) (2017).
Petitioner suggests that, by authorizing DMV to augment
the statutorily required advice, the legislature gave DMV
exclusive authority to deviate from the specified rights and
consequences. In other words, although DMV might choose
to require all officers to inform persons arrested for DUII of
the potential to seek a search warrant, no individual officer
could unilaterally decide to volunteer that information.
We disagree. Petitioner reads too much into ORS
813.130(4) (2017). Although that subsection expressly gave
DMV the flexibility to provide (or, presumably, to require
that officers provide) “additional information concerning
rights and consequences,” we see no reason to infer that
the legislature intended to prohibit officers themselves from
sharing additional, legally correct information—at least not
with the effect that such a deviation would invalidate an
otherwise “valid” breath-test refusal. See ORS 813.410(6)(e)
(2017) (considering whether “person had been informed under
ORS 813.100 of rights and consequences as described under
ORS 813.130,” not whether person also had been informed
of other rights or consequences); see also ORS 813.100
(2017) (expressly stating only two requirements for suspension of driving privileges based upon a breath-test refusal:
(1) informing of rights and consequences as described under
ORS 813.130; and (2) a refusal to submit to a breath test by
a person so informed).
Cite as 370 Or 362 (2022) 377
Turning back to the broader statutory context, we
next consider how the requirement that persons arrested for
DUII be advised of both their rights and the consequences
related to a breath-test refusal fits within the broader
implied-consent framework as it existed in 2017. First, under
ORS 813.130(2) (2017), as under the current statute, all persons arrested for DUII and asked to take a breath test were
required to be advised of various rights and consequences
related to taking (and failing) a breath test, as well as about
certain afforded rights and the procedural rules governing
those rights. See ORS 813.130(2)(g) - (L) (2017); 370 Or at 374
n 9 (setting out requirements). Second, also under that same
version of ORS 813.130, all persons arrested for DUII and
asked to take a breath test were required to be informed of
various consequences resulting from a refusal to take the
test, whether or not they initially refused the test.10 Specific
to breath-test refusals, the person was required to be told
that (1) evidence of a refusal could be admitted against the
person; (2) if the person refused to take the breath test, the
person’s driving privileges would be suspended; (3) a license
suspension based on a refusal would “be substantially longer” than a suspension based upon a breath-test failure;
(4) if the person refused a breath test, then the person would
not be eligible for a hardship permit “for at least 90 days,
and possibly for three years”; and (5) refusal of a breath test
was punishable by a fine of at least $500 and not more than
$1,000. ORS 813.130(2)(a) - (f) (2017); 370 Or at 374 n 9 (setting out requirements).
In sum, while most of the rights-and-consequences
information required to be provided applied to all persons
arrested for DUII, the required refusal-specific information—
which ultimately frames the issue in this case—concerned
the consequences of refusing a test and, specifically, the
various ways in which refusals would be penalized. In that
regard, the requirement that persons arrested for DUII be
informed about the penalties for refusal is consistent with
10
In its current form, ORS 813.130 provides a bifurcated list of rights and
consequences, and it requires arresting officers to read those applicable to breath-test refusals to a person arrested for DUII only if the person initially refuses to
take the test after having been informed of the rights and consequences related
to breath-test failures. ORS 813.130(3).
378 Murdoch v. DMV
the long-recognized purpose of the implied-consent law: to
lawfully coerce such persons to submit to the breath test. As
summarized in State v. Banks, 364 Or 332, 340-41,
434 P3d
361 (2019):
“This court has explained that the implied-consent statutes are meant ‘”to overcome the possibility of physical
resistance … without resort to physical compulsion” by
imposing adverse legal consequences on a refusal to submit
to the test.’ [State v.] Spencer, 305 Or [59,] 67[,
750 P2d 147
(1988)] (quoting [State v.] Newton, 291 Or [788,] 793[,
636
P2d 393 (1981)]; see also State v. Cabanilla,
351 Or 622,
632,
273 P3d 125 (2012) (legislative purpose with advice
and consequences was to ‘coerce a driver’s submission to
take the tests’); Spencer,
305 Or at 71 (‘[T]he statute’s references to a driver’s “refusal” do not evince a legislative concern that the driver make a voluntary and fully informed
decision whether to submit to the test.’).”
In other words, the principal reason for requiring
officers to inform a person arrested for DUII of the adverse
consequences of refusing a breath test is to cause the person
to submit to the test: ORS 813.130(2) (2017), like the current
version of that provision, gave an officer leverage to lawfully
coerce such a person—who might otherwise refuse to take
the breath test—by itemizing for the person the legislatively
created adverse consequences of refusal. Viewed through
that lens, the legislature’s decision to require, as a predicate to a valid license suspension under ORS 813.410(6)(e)
(2017), that the person be “informed … of rights and consequences as described under ORS 813.130” seems unlikely
to reflect a legislative desire to limit the amount of lawful
information that an arresting officer may share with a
person.
Our review of the legislative history supports that
understanding. The implied-consent statutes now codified
as ORS 813.100 - 813.136 were enacted in 1983, when the
legislature substantially revised Oregon’s DUII laws. Or
Laws 1983, ch 338, § 591; see also Spencer, 305 Or at 62 (noting that implied-consent law now codified as ORS 813.100
- 813.136 formerly was codified as ORS 487.805 - 487.835).
The legislature enacted the predecessor to ORS 813.130 two
years later through Senate Bill (SB) 203, Or Laws 1985,
Cite as
370 Or 362 (2022) 379
ch 672, § 22, at which time it also amended the predecessors
to ORS 813.100 and ORS 813.410, so that they referred to
the new statute. Or Laws 1985, ch 672, §§ 13, 19.
Of relevant concern to the proponents of SB 203 was
streamlining and clarifying the implied-consent process by
making the following changes: (1) removing the many cross-references to other statutes (in former ORS 487.085) that
provided rights or consequences related to the breath-test
process and replacing them with a single reference to what
is now ORS 813.130; and (2) providing DMV with substantive guidance in developing forms to advise drivers of their
rights and consequences, rather than relying on the statutory cross-references, many of which were not considered
relevant to the decision whether to take the breath test. See
Tape Recording, Senate Committee on Judiciary, SB 203,
May 28, 1985, Tape 151, Side A (statement of Assistant
Attorney General Stephanie Smythe); see Exhibit N, Senate
Committee on Judiciary, SB 203, Mar 28, 1985 (testimony
of Assistant Attorney General Stephanie Smythe); see also
Exhibit C, Senate Committee on Judiciary, SB 203, May 28,
1985 (proposed amendments to SB 203, showing amendments to former ORS 487.805 (renumbered as ORS 813.100)
to remove numerous statutory cross-references and add reference to what is now ORS 813.130).
As Assistant Attorney General Stephanie Smythe
explained on behalf of DMV, the numerous statutory cross-references made license suspensions susceptible to legal
challenges, because the legislature had not “expressed
[its] intent as to what form of advice would substantially
comply” with those other provisions. Exhibit N, Senate
Committee on Judiciary, SB 203, Mar 28, 1985 (testimony
of Assistant Attorney General Stephanie Smythe). Smythe
explained that a person arrested for DUII could challenge
the advice that an officer had provided from DMV’s existing form because that form did not use the exact language
of a cross-referenced statute. Id. In Smythe’s view, the proposed wording set out in what is now ORS 813.130 would
help avoid “costly and time-consuming legal challenges to
the sufficiency of [the] advice” that arrested persons were
being given. Id.
380 Murdoch v. DMV
Nothing in that legislative history suggests that
the legislature intended, by listing various rights and consequences in the predecessor to ORS 813.130, to prohibit
officers from explaining additional, lawful consequences—
at least not with the intended effect that a refusal would
not be “valid” for purposes of ORS 813.410 if an officer were
to provide such additional information.11 Rather, the purpose of listing rights and consequences in a single place
(and requiring DMV to develop its own form incorporating
that list) was to help ensure that persons arrested for DUII
would be sufficiently informed of those rights and consequences, and therefore unable to claim that the statutorily
required information had not been provided. It would not
further that purpose to conclude that May’s action of providing additional information—that she would seek a warrant
if petitioner refused the breath test—operated to invalidate
the suspension of petitioner’s driving privileges.
Instead, the legislative purpose of the statute is
advanced if we uphold the validity of petitioner’s license suspension. Again, the legislature’s concern was that officers
advising persons arrested for DUII of the rights and consequences associated with the breath test (with or without
the benefit of DMV’s existing form) would fail to convey that
information with the requisite accuracy and completeness,
resulting in otherwise avoidable legal challenges and the
undesirable invalidation of license suspensions. Here, there
is no dispute that May, relying on the implied-consent form,
precisely informed petitioner of the rights and consequences
required under ORS 813.130 (2017). Thus, petitioner received
the information that the legislature intended, thereby serving the purpose for which the legislature enacted ORS
813.130 (2017).
In light of the foregoing, we conclude that, by providing petitioner with all the information set out in ORS
813.130 (2017) and incorporated into the DMV-approved
implied-consent form, May “informed [him] under ORS
813.100 of rights and consequences as described under ORS
11
As noted earlier, there is no dispute here that May had authority to seek a
search warrant to test petitioner’s BAC as part of her DUII investigation or that
evidence resulting from such a search would be admissible against him.
Cite as 370 Or 362 (2022) 381
813.130.” ORS 813.410(6)(e) (2017). That conclusion is consistent with the text, context, and legislative purpose of ORS
813.410 (2017) and ORS 813.130 (2017), as well as the purposes of the implied-consent law as a whole. Although we
do not foreclose the possibility that, under different circumstances, advice regarding consequences other than those
listed in ORS 813.130 might somehow alter the meaning of
the listed consequences—such that the advice is no longer
“substantially” as set out in that statute—petitioner has not
shown that to be the case here.
III. CONCLUSION
For the reasons stated above, we conclude that the
ALJ’s final order suspending petitioner’s driving privileges
must be affirmed because petitioner was informed of the
rights and consequences of refusing to submit to a chemical breath test “as described under ORS 813.130.” ORS
813.410(6)(e) (2017).
The decision of the Court of Appeals and the judgment of the circuit court are reversed. The order of the
Driver and Motor Vehicle Services Division is affirmed.
