State v. Westlund (1986)

In the context of administrative seizure and search, the issue is not the reasonableness of an individual officer’s 1 In Westlund, this court construed former ORS 426.460 (1985) renumbered as ORS 430.399 (1995). 302 Or at 225.

Any defenses which may or may not be successful in a defense against criminal punishment for the act of driving, see, e.g., State v. Westlund, 729 P.2d 541, 544 (Or. 1986); State v. Merritt, 546 A.2d 791, 793 (Vt. 1988), are not at issue on the question of civil consequences for exercising the choice of declining a test.

United States v. Wiley, 794 F.2d 514, 515 (9th Cir. 1986); State v. Westlund, 302 Or. 225, 230-31 , 729 P.2d 541, 544 (1986) (police officer, observing the defendant to be drunk, may have violated statute mandating taking him into protective custody when he let *533 him drive, but this failure does not bar the State from prosecuting the defendant for driving under the influence of intoxicants).

See State v. Westlund, 75 Or App 43 , 49 n 5, 705 P2d 208 (1985), aff’d in part, rev’d in part, 302 Or 225 , 729 P2d 541 (1986) (stating that even if a Supreme Court decision “were both an innovation in Oregon law and completely indefensible analytically, we would be bound to follow it * * * because the decision is a binding precedent of a superior court”).

See, e.g., State v. Westland, 302 Or 225, 231 , 729 P2d 541 (1986) (probable cause to search where officer, from training and experience, believed it highly likely, but not certain, that white powder visible in transparent vial was controlled substance).

See State v. Okeke, 304 Or 367, 370-71 , 745 P2d 418 (1987), and State v. Westlund, 302 Or 225, 230 , 729 P2d 541 (1986) (both so indicating).

See State v. Owens, 302 Or 196 , 729 P2d 524 , State v. Westlund, 302 Or 225 , 729 P2d 541 (1986); State v. Forseth, 302 Or 233 , 729 P2d 545 (1986).