FILED: April 3, 2003

IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of the Suspension
of the Driving Privileges of

BADR RABBANI,

Respondent,

v.

DRIVER AND MOTOR VEHICLE
SERVICES DIVISION (DMV),

Appellant.

0112-12778; A118215

Appeal from Circuit Court, Multnomah County.

Roosevelt Robinson, Judge.

Argued and submitted March 11, 2003.

Richard D. Wasserman, Assistant Attorney General, argued the cause for appellant. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jon Faraday Strock argued the cause and filed the brief for respondent.

Before Edmonds, Presiding Judge, and Kistler and Schuman, Judges.

PER CURIAM

Reversed and remanded with instructions to reinstate DMV order suspending driving privileges.

PER CURIAM

The Driver and Motor Vehicle Services Branch (DMV) appeals from a judgment that set aside its suspension of petitioner's driving privileges for his refusal to take a breath alcohol test. We reverse.

On appeal, petitioner raises no issues concerning his arrest or the information that the officer provided before asking him to take the breath test. DMV found that the officer asked petitioner to take a breath test and that he refused. The trial court held that there is not substantial evidence to support DMV's decision. DMV found that petitioner originally agreed to take the test but that, when the "Please Blow" prompt appeared on the machine and the officer again asked him to take the test, he stated "No, I wasn't driving." The officer took that statement as a refusal and did not permit petitioner to take the test when he later asked to do so. The officer's testimony at the administrative hearing provides substantial evidence to support those findings.

We have held that anything substantially short of an unqualified and unequivocal agreement to take the test constitutes a refusal and that, once a motorist refuses, there is no right to change his or her mind. Caldeira v. DMV, 181 Or App 168, 171, 45 P3d 489, rev den, 334 Or 631 (2002). Under that rule and DMV's findings, DMV's order suspending petitioner's driving privileges was correct.

Reversed and remanded with instructions to reinstate DMV order suspending driving privileges.


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