2015 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) 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 person’s blood, as shown by the test, had 0.04 percent or more by weight of alcohol, the department shall suspend the person’s 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 person’s 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; 2013 c.237 §29]

Notes of Decisions

Under Former Similar Statute (Ors 482.540)

The request to consult a lawyer before taking a breathalyzer test constitutes a refusal under this statute. Lundquist v. Motor Vehicles Div., 23 Or App 507, 543 P2d 29 (1975)

Under Former Similar Statute (Ors 482.541)

Under this sec­tion, review of suspension order was limited to whether of­fi­cers had reasonable grounds to believe that peti­tioner was driving, rather than whether peti­tioner was actually driving while under influence of intoxicants. Leabo v. State ex rel Motor Vehicles Div., 46 Or App 55, 610 P2d 317 (1980), Sup Ct review denied

Existence of probable cause to arrest for viola­tion of ORS 813.010 (Driving under the influence of intoxicants) is not determinative under this sec­tion, so where defendant was arrested for viola­tion of invalid municipal ordinance, factual determina­tion as to actual grounds for arrest had to be made. Brinkley v. Motor Vehicles Div., 47 Or App 25, 613 P2d 1071 (1980)

Driver arrested for DUII has right to independent blood alcohol test regardless of whether breath test registers more or less than 0.08 percent. Wimmer v. MVD, 75 Or App 287, 706 P2d 182 (1985), Sup Ct review denied

Unreasonable delay of peti­tioner before responding to requests to take intoxica­tion test amounted to refusal and Motor Vehicles Division was justified in suspending license. Luth v. Motor Vehicles Division, 87 Or App 137, 741 P2d 897 (1987)

MVD may not suspend driving privileges based on breath test result unless driver is first validly arrested. Pooler v. MVD, 88 Or App 475, 746 P2d 716 (1987), aff'd 306 Or 47, 755 P2d 701 (1988)

[Former] ORS 41.130 (res judicata, collateral estoppel) is inapplicable to pro­ce­dure under this sec­tion for suspension of license as administrative hearing is not court and hearings of­fi­cer in executive branch agency is not judge. State v. Ratliff, 304 Or 254, 744 P2d 247 (1987)

Under Former Similar Statute (Ors 482.560)

This sec­tion does not require responsive pleading by Division, although court may permit a response. Fiala v. Motor Vehicles Division, 30 Or App 589, 567 P2d 603 (1977)

In General

In order for police of­fi­cer to validly "possess" permit to administer blood alcohol test, of­fi­cer does not have to prove actual physical pos­ses­sion of written docu­ment. Fleming v. MVD, 87 Or App 613, 743 P2d 764 (1987)

In implied con­sent hearing, validity of driver's arrest for DUII must be considered only if driver raises issue during evidentiary part of hearing and where driver did not request considera­tion of validity of arrest until closing argu­ment, license was validly suspended. Bish v. MVD, 97 Or App 648, 776 P2d 1320 (1989); Crawford v. MVD, 98 Or App 354, 779 P2d 196 (1989), Sup Ct review denied

Peti­tioner's response to request to take breath test of "No, not without the advice of an attorney" constituted refusal. Schrier v. MVD, 99 Or App 209, 781 P2d 1226 (1989)

Motor Vehicles Division must consider de­fense, if raised, that licensee was not driving before it may suspend licensee's license. Hilton v. MVD, 308 Or 150, 775 P2d 1378 (1989)

Respondent's driving in early morning and twice crossing over fog line gave of­fi­cer basis for reasonable suspicion that respondent was driving under influence of intoxicants. Fischer v. MVD, 101 Or App 580, 792 P2d 445 (1990)

Under this sec­tion or implied con­sent law, per­son need only know that per­son is under arrest, not that per­son is under arrest for DUII. Oviedo v. MVD, 102 Or App 110, 792 P2d 1244 (1990)

Where, when asked to take breath test, respondent said, "No, I want a blood test, not a breath test. I want an attorney," respondent's state­ment constituted refusal to take test. Ahlbin v. MVD, 113 Or App 441, 833 P2d 1291 (1992)

Unreasonable delay of peti­tioner before responding to requests to take intoxica­tion test amounted to refusal. Ranger v. MVD, 122 Or App 141, 856 P2d 1050 (1993)

Request by of­fi­cer that driver take breath test did not need to follow particular form. Altree v. MVD, 125 Or App 215, 865 P2d 441 (1993)

Reasonable basis for suspecting that infrac­tion has occurred is sufficient to permit stop. State v. Matthews, 126 Or App 154, 868 P2d 14 (1994), aff'd 320 Or 398, 884 P2d 1224 (1994)

Whether test "disclosed" unlawful level of blood alcohol is determined by numeric readout of breath testing machine; therefore accuracy of machine is not in issue at license suspension hearing. Owens v. MVD, 319 Or 259, 875 P2d 463 (1994)

Evidence disputing accuracy of properly performed breath test is not admissible at hearing. Lawrie v. MVD, 134 Or App 575, 895 P2d 790 (1995)

Where evidence does not directly es­tab­lish that of­fi­cer believed that traffic infrac­tion had occurred, hearings of­fi­cer may not infer belief from other facts presented. Pomerenke v. MVD, 134 Or App 630, 896 P2d 1214 (1995), Sup Ct review denied

Substantial compliance of police report with ORS 813.120 (Police report to department) is jurisdic­tional prerequisite to license suspension. Coulter v. DMV, 168 Or App 442, 4 P3d 89 (2000)

"Final order" means post-hearing order that imposes suspension or declares suspension invalid. Grossman v. DMV, 183 Or App 623, 54 P3d 629 (2002)

Request for new hearing does not toll time for seeking review of final order. Grossman v. DMV, 183 Or App 623, 54 P3d 629 (2002)

Peti­tioner claiming lack of opportunity to com­mu­ni­cate with counsel or others has burden of proving restric­tion placed on ability to com­mu­ni­cate was unreasonable. Brown v. DMV, 219 Or App 607, 185 P3d 459 (2008), Sup Ct review denied

List of prerequisites for valid suspension of license is not exclusive. Hays v. DMV, 228 Or App 689, 209 P3d 405 (2009)

Law Review Cita­tions

In General

30 WLR 723 (1994)

  • Pete Castleberry, Sep 12, 2011
    “If you fail or refuse a breath test, the police will confiscate your driver's license and give you a yellow Implied Consent Suspension Form. . . .”
  • Paul Galm Law, Aug 24, 2010
    “In the United States, drunk driving is al­ways illegal. In Oregon, the crim­i­nal charge is known as Driving Under the Influence of Intoxicants (DUII). . . .”

1 Legislative Counsel Committee, CHAPTER 813—Driving Under the Influence of Intoxicants, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors813.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 813, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano813.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.