2013 ORS § 813.410¹
Suspension upon receipt of police report on implied consent test
  • hearing
  • validity of suspension
  • appeal
  • rules

(1) If the Department of Transportation receives from a police officer a report that is in substantial compliance with ORS 813.120 (Police report to department), the department shall suspend the driving privileges of the person in this state on the 30th day after the date of arrest or, if the report indicates that the person failed a blood test, on the 60th day after receipt of the report, unless, at a hearing described under this section, the department determines that the suspension would not be valid as described in this section. A suspension of driving privileges imposed under this subsection shall be for a period of time established under ORS 813.420 (Duration of suspension for refusal or failure of test).

(2) If the department receives from a police officer a report pursuant to ORS 813.120 (Police report to department) that discloses that the person holds a commercial driver license and that the person was driving a motor vehicle or commercial motor vehicle and refused to submit to a test under ORS 813.100 (Implied consent to breath or blood test) or that the person was driving a commercial motor vehicle and submitted to a breath or blood test and the persons blood, as shown by the test, had 0.04 percent or more by weight of alcohol, the department shall suspend the persons commercial driver license on the 30th day after the date of arrest or, if the report indicates that the person failed a blood test, on the 60th day after receipt of the report, unless, at a hearing described under this section, the department determines that the suspension would not be valid as described in this section. A commercial driver license suspension imposed under this subsection shall be for a period of time established under ORS 813.404 (Duration of suspension of commercial driver license).

(3) If within 10 days from the date of arrest, or, if the person fails a blood test, within 10 days from the date the department sends notice of suspension, the department receives a written request for a hearing from a person whose driving privileges or commercial driver license the department proposes to suspend under this section, the department shall provide a hearing in accordance with this section. Except as otherwise provided under this section, a hearing held by the department under this section shall be subject to the provisions for contested cases, other than appeal provisions, under ORS chapter 183. The applicable appeal provisions are as provided under ORS 813.450 (Appeal from suspension for refusal or failure of breath test) and section 24, chapter 672, Oregon Laws 1985. Notwithstanding ORS 809.430 (Notice of suspension, cancellation or revocation), the department is not required to give any notice of intent to suspend or suspension in addition to that provided under ORS 813.100 (Implied consent to breath or blood test).

(4) Except as provided in subsection (5) of this section, a hearing required by this section is subject to all of the following:

(a) The hearing shall be conducted by an administrative law judge assigned from the Office of Administrative Hearings established under ORS 183.605 (Office of Administrative Hearings).

(b) The administrative law judge shall conduct the hearing by telephone or other two-way electronic communication device.

(c) The department may authorize the administrative law judge to issue a final order in any case.

(d) A person who requests a hearing under this section and who fails, without just cause, to appear personally or through an attorney waives the right to a hearing. If a person waives a right to a hearing under this paragraph, the department is not required to make any showing at hearing.

(e) Except as provided in ORS 813.440 (Grounds for hearing on validity of suspension) or upon remand under ORS 813.450 (Appeal from suspension for refusal or failure of breath test), the department shall hold the hearing and issue a final order within 30 days of the date of the arrest or, if the person fails a blood test, within 60 days from the date the department received the report of the failure.

(f) In connection with the hearing, the department or its authorized representative may administer oaths and shall issue subpoenas for the appearance of witnesses by telephone or other two-way electronic communication device at the hearing requested by the person or the department and the production of relevant documents.

(g) The hearing shall be recorded by whatever means may be determined by the department and shall include testimony and exhibits, if any. The record of the proceedings shall not be transcribed unless requested by a party to the proceeding.

(5)(a) A person or a police officer may request that a hearing required by this section be conducted in person.

(b) The department, by rule, shall establish the manner and time limitation requirements by which a person or a police officer may request that a hearing be conducted in person.

(c) Unless there is an agreement between the person and the department that the hearing be conducted elsewhere, a hearing requested under this subsection shall be held either in the county where the alleged offense occurred or at any place within 100 miles of the place where the offense is alleged to have occurred, as established by the department by rule.

(d) In connection with the hearing, the department or its authorized representative may administer oaths and shall issue subpoenas for the attendance of witnesses at the hearing requested under this subsection by the person and the production of relevant documents.

(6) This subsection shall be narrowly construed so as to effect the legislative purpose of limiting the scope of hearings under this section. The scope of a hearing under this section shall be limited to whether the suspension is valid as described in this subsection. A suspension under this section is valid if all of the following requirements have been met:

(a) The person, at the time the person was requested to submit to a test under ORS 813.100 (Implied consent to breath or blood test), was under arrest for driving while under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) or a municipal ordinance.

(b) The police had reasonable grounds to believe, at the time the request was made, that the person arrested had been driving under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) or of a municipal ordinance.

(c) The person refused a test under ORS 813.100 (Implied consent to breath or blood test), or took a breath or blood test and the test disclosed that the level of alcohol in the persons blood at the time of the test was:

(A) 0.08 percent or more by weight if the person was not driving a commercial motor vehicle;

(B) 0.04 percent or more by weight if the person was driving a commercial motor vehicle; or

(C) Any amount if the person was under 21 years of age.

(d) If the report under ORS 813.120 (Police report to department) indicates that the person was driving a commercial motor vehicle, the vehicle was in fact a commercial motor vehicle as defined in ORS 801.208 (Commercial motor vehicle).

(e) The person had been informed under ORS 813.100 (Implied consent to breath or blood test) of rights and consequences as described under ORS 813.130 (Rights of and consequences for person asked to take test).

(f) The person was given written notice required under ORS 813.100 (Implied consent to breath or blood test).

(g) If the person arrested submitted to a test under ORS 813.100 (Implied consent to breath or blood test), the person administering the test was qualified to administer the test under ORS 813.160 (Methods of conducting chemical analyses).

(h) If the person arrested submitted to a test under ORS 813.100 (Implied consent to breath or blood test), the methods, procedures and equipment used in the test complied with requirements under ORS 813.160 (Methods of conducting chemical analyses).

(7) A suspension imposed under this section shall remain in effect pending any appeal or remand of a final order issued under this section and there shall be no stay of the suspension pending appeal or remand.

(8) Unless a person fails, without just cause, to appear personally or through an attorney at a hearing requested under this section, a person shall have the right to appeal any final order by the department after a hearing under this section by filing a petition. The following apply to this subsection:

(a) The person shall file the petition in the circuit court for the county where the person resides or, if the person does not reside in Oregon, in the circuit court of the county in which the arrest took place within 30 days after issuance of the final order of the department.

(b) The court upon receipt of the petition shall set the matter for hearing upon 10 days notice to the department and the petitioner unless hearing is waived by both the department and the petitioner. [1983 c.338 §358; 1985 c.16 §167; 1985 c.672 §13; 1987 c.158 §170; 1989 c.636 §44; 1991 c.860 §11; 1993 c.305 §6; 1993 c.600 §1; 1995 c.568 §6; 1999 c.831 §2; 1999 c.849 §§193,194; 2003 c.75 §67; 2005 c.649 §27; 2007 c.288 §18; 2010 c.37 §1]

Note: The amendments to 813.410 (Suspension upon receipt of police report on implied consent test) by section 29, chapter 237, Oregon Laws 2013, become operative July 8, 2015. See section 50, chapter 237, Oregon Laws 2013. The text that is operative on and after July 8, 2015, is set forth for the users convenience.

813.410 (Suspension upon receipt of police report on implied consent test). (1) If the Department of Transportation receives from a police officer a report that is in substantial compliance with ORS 813.120 (Police report to department), the department shall suspend the driving privileges of the person in this state on the 30th day after the date of arrest or, if the report indicates that the person failed a blood test, on the 60th day after receipt of the report, unless, at a hearing described under this section, the department determines that the suspension would not be valid as described in this section. A suspension of driving privileges imposed under this subsection shall be for a period of time established under ORS 813.420 (Duration of suspension for refusal or failure of test).

(2) If the department receives from a police officer a report pursuant to ORS 813.120 (Police report to department) and the person holds commercial driving privileges and the person was driving a motor vehicle or commercial motor vehicle and refused to submit to a test under ORS 813.100 (Implied consent to breath or blood test) or the person was driving a commercial motor vehicle and submitted to a breath or blood test and the persons blood, as shown by the test, had 0.04 percent or more by weight of alcohol, the department shall suspend the persons commercial driving privileges on the 30th day after the date of arrest or, if the report indicates that the person failed a blood test, on the 60th day after receipt of the report, unless, at a hearing described under this section, the department determines that the suspension would not be valid as described in this section. A commercial driving privileges suspension imposed under this subsection shall be for a period of time established under ORS 809.510 (Conviction of crime) or 809.520 (Lifetime suspension of commercial driving privileges).

(3) If within 10 days from the date of arrest, or, if the person fails a blood test, within 10 days from the date the department sends notice of suspension, the department receives a written request for a hearing from a person whose driving privileges or commercial driving privileges the department proposes to suspend under this section, the department shall provide a hearing in accordance with this section. Except as otherwise provided under this section, a hearing held by the department under this section shall be subject to the provisions for contested cases, other than appeal provisions, under ORS chapter 183. The applicable appeal provisions are as provided under ORS 813.450 (Appeal from suspension for refusal or failure of breath test) and section 24, chapter 672, Oregon Laws 1985. Notwithstanding ORS 809.430 (Notice of suspension, cancellation or revocation), the department is not required to give any notice of intent to suspend or suspension in addition to that provided under ORS 813.100 (Implied consent to breath or blood test).

(4) Except as provided in subsection (5) of this section, a hearing required by this section is subject to all of the following:

(a) The hearing shall be conducted by an administrative law judge assigned from the Office of Administrative Hearings established under ORS 183.605 (Office of Administrative Hearings).

(b) The administrative law judge shall conduct the hearing by telephone or other two-way electronic communication device.

(c) The department may authorize the administrative law judge to issue a final order in any case.

(d) A person who requests a hearing under this section and who fails, without just cause, to appear personally or through an attorney waives the right to a hearing. If a person waives a right to a hearing under this paragraph, the department is not required to make any showing at hearing.

(e) Except as provided in ORS 813.440 (Grounds for hearing on validity of suspension) or upon remand under ORS 813.450 (Appeal from suspension for refusal or failure of breath test), the department shall hold the hearing and issue a final order within 30 days of the date of the arrest or, if the person fails a blood test, within 60 days from the date the department received the report of the failure.

(f) In connection with the hearing, the department or its authorized representative may administer oaths and shall issue subpoenas for the appearance of witnesses by telephone or other two-way electronic communication device at the hearing requested by the person or the department and the production of relevant documents.

(g) The hearing shall be recorded by whatever means may be determined by the department and shall include testimony and exhibits, if any. The record of the proceedings may not be transcribed unless requested by a party to the proceeding.

(5)(a) A person or a police officer may request that a hearing required by this section be conducted in person.

(b) The department, by rule, shall establish the manner and time limitation requirements by which a person or a police officer may request that a hearing be conducted in person.

(c) Unless there is an agreement between the person and the department that the hearing be conducted elsewhere, a hearing requested under this subsection shall be held either in the county where the alleged offense occurred or at any place within 100 miles of the place where the offense is alleged to have occurred, as established by the department by rule.

(d) In connection with the hearing, the department or its authorized representative may administer oaths and shall issue subpoenas for the attendance of witnesses at the hearing requested under this subsection by the person and the production of relevant documents.

(6) This subsection shall be narrowly construed so as to effect the legislative purpose of limiting the scope of hearings under this section. The scope of a hearing under this section shall be limited to whether the suspension is valid as described in this subsection. A suspension under this section is valid if all of the following requirements have been met:

(a) The person, at the time the person was requested to submit to a test under ORS 813.100 (Implied consent to breath or blood test), was under arrest for driving while under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) or a municipal ordinance.

(b) The police had reasonable grounds to believe, at the time the request was made, that the person arrested had been driving under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) or of a municipal ordinance.

(c) The person refused a test under ORS 813.100 (Implied consent to breath or blood test), or took a breath or blood test and the test disclosed that the level of alcohol in the persons blood at the time of the test was:

(A) 0.08 percent or more by weight if the person was not driving a commercial motor vehicle;

(B) 0.04 percent or more by weight if the person was driving a commercial motor vehicle; or

(C) Any amount if the person was under 21 years of age.

(d) If the report under ORS 813.120 (Police report to department) indicates that the person was driving a commercial motor vehicle, the vehicle was in fact a commercial motor vehicle as defined in ORS 801.208 (Commercial motor vehicle).

(e) The person had been informed under ORS 813.100 (Implied consent to breath or blood test) of rights and consequences as described under ORS 813.130 (Rights of and consequences for person asked to take test).

(f) The person was given written notice required under ORS 813.100 (Implied consent to breath or blood test).

(g) If the person arrested submitted to a test under ORS 813.100 (Implied consent to breath or blood test), the person administering the test was qualified to administer the test under ORS 813.160 (Methods of conducting chemical analyses).

(h) If the person arrested submitted to a test under ORS 813.100 (Implied consent to breath or blood test), the methods, procedures and equipment used in the test complied with requirements under ORS 813.160 (Methods of conducting chemical analyses).

(7) A suspension imposed under this section shall remain in effect pending any appeal or remand of a final order issued under this section and there shall be no stay of the suspension pending appeal or remand.

(8) Unless a person fails, without just cause, to appear personally or through an attorney at a hearing requested under this section, a person shall have the right to appeal any final order by the department after a hearing under this section by filing a petition. The following apply to this subsection:

(a) The person shall file the petition in the circuit court for the county where the person resides or, if the person does not reside in Oregon, in the circuit court of the county in which the arrest took place within 30 days after issuance of the final order of the department.

(b) The court upon receipt of the petition shall set the matter for hearing upon 10 days notice to the department and the petitioner unless hearing is waived by both the department and the petitioner.