arrested motorist take test in Oregon

2010Our case law has consistently set out the principle 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.’ ” Lundquist v. Motor Vehicles Div., 23 Or App 507, 512 , 543 P2d 29 (1975) (emphasis omitted) (quoting State v. Pandoli, 109 NJ Super 1, 4, 262 A2d 41 (1970)).

2010Our case law has consistently set out the principle 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.'" Lundquist v. Motor Vehicles Div., 23 Or.App. 507, 512 , 543 P.2d 29 (1975) (emphasis omitted) (quoting State v. Pandoli, 109 N.J.Super. 1, 4 , 262 A.2d 41 (1970)).

2003Despite the lapse of approximately two and one-fourth hours from the time she began consuming water until the “refusal” (and approximately three and three-fourths hours from the time of the arrest), petitioner stated that she still could not provide a urine sample and that she “would not even try.” “[A]nything 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.” Moore v. Motor Vehicles Division, 293 Or 715, 722 , 652 P2d 794 (1982) (citations and quotation marks omitted).

2003Despite the lapse of approximately two and one-fourth hours from the time she began consuming water until the “refusal” (and approximately three and three-fourths hours from the time of the arrest), petitioner stated that she still could not provide a urine sample and that she “would not even try.” “[A]nything 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.” Moore v. Motor Vehicles Division, 293 Or 715, 722 , 652 P2d 794 (1982) (citations and quotation marks omitted).

1982Having in mind the remedial purpose of the statute, and the rapidity with which the passage of time and the physiological processes tend to. eliminate evidence of ingested alcohol in the system, it is sensible to construe the *722 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.” Stratikos v. Dept. of Motor Vehicles, 4 Or App at 31

1977Div., 19 Or App 725, 728-29 , 528 P2d 1090 (1974), and Stratikos v. Dept. of Motor Vehicles, 4 Or App 313, 315-16 , 477 P2d 237 , 478 P2d 654 (1970), rev den (1971), we quoted with approval the observation from State v. Pandoli, 109 NJ Super 1, 4, 262 A2d 41 (1970), that "* * * 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’

2010On appeal, we held that the petitioner had refused the breath test because “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.” 181 Or App at 171 (internal quotation marks omitted). *119 The petitioner’s argument that he had not refused the test was “premised on a misunderstanding that the refusal, rather than the assent, must be unequivocal.” Id.) see also Davis, 209 Or App at 42 (driver refused a breath test when, in response to an officer’s third inquiry into whether driver would

2005See Caldeira, 181 Or App at 171 (“[A]nything 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.”) (quoting *206 State v. Pandoli, 109 NJ Super 1, 4, 262 A2d 41 (1970) (internal quotation marks omitted)).

2010On appeal, we held that the petitioner had refused the breath test because “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.” 181 Or App at 171 (internal quotation marks omitted). *119 The petitioner’s argument that he had not refused the test was “premised on a misunderstanding that the refusal, rather than the assent, must be unequivocal.” Id.) see also Davis, 209 Or App at 42 (driver refused a breath test when, in response to an officer’s third inquiry into whether driver would