STATE v. FORNEY, 72 Or. App. 220 (1985)

695 P.2d 929

STATE OF OREGON, Appellant, v. CLIFFORD T. FORNEY, Respondent.

Oregon Court of Appeals.Argued and submitted January 23, 1985
Reversed and remanded February 20, 1985

Appeal from District Court, Multnomah County.

Anthony L. Casciato, Judge.

Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.

James D. Lang, Portland, argued the cause and filed the brief for respondent.

Before Gillette, Presiding Judge, and Van Hoomissen and Young, Judges.

PER CURIAM

Reversed and remanded for trial.

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PER CURIAM

In this driving under the influence of intoxicants case, the state appeals a trial court order suppressing evidence of defendant’s refusal to take a breath test. The arresting officer made the request that defendant take the test while both men were at the scene of the arrest, several miles from the stationhouse. The trial court stated, in granting defendant’s motion to suppress:

“I suppose what I’m saying, really, is that unless you could bring the fellow downtown, or do bring him downtown, and ask him to take a * * * test in the usual way, that you just probably don’t have [a refusal].”

We disagree. Without some evidence that defendant was not given the appropriate statutory warnings or did not understand what his refusal would mean — and there is no suggestion of either sort of infirmity in this case — defendant did refuse to take the test, and the state was entitled to use evidence of it.

Reversed and remanded for trial.

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